-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1699
LYDIA LIBERTAD, ET AL.,
Plaintiffs - Appellants,
v.
FATHER PATRICK WELCH, ET AL.,
Defendants - Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. H ctor M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Campbell, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
_____________________
Catherine Albisa, with whom Judith Berkan was on brief for _________________ _____________
appellants.
Mathew D. Staver, with whom Frederick H. Nelson and Nicole _________________ ___________________ ______
M. Arfaras, were on brief for appellees Ed Martin, Donald ___________
Treshman and Rescue America.
Miguel A. Gim nez-Mu oz and Cordero, Miranda & Pinto on ________________________ _________________________
brief for appellees Father Patrick Welch and Norman Weslin.
____________________
April 28, 1995
____________________
TORRUELLA, Chief Judge. A group of individuals and TORRUELLA, Chief Judge. ___________
organizations representing women who have sought or will seek
family planning services in Puerto Rico ("Appellants") brought
this action against certain individuals and organizations
("Appellees") who oppose abortion and coordinate anti-abortion
demonstrations at women's health clinics in Puerto Rico. The
Appellants appeal from the district court's grant of summary
judgment disposing of their claims brought under 1962(c) and
(d) of the Racketeer Influenced and Corrupt Organizations Act,
("RICO"), 18 U.S.C. 1961 et seq. (1984), and the "hindrance __ ____
clause" of 42 U.S.C. 1985(3) (1981).1 In granting summary
judgment for Appellees, the district court ruled: 1) that
Appellants' claims brought under 1962(c) and (d) of RICO
failed because Appellants did not show either the existence of an
enterprise or a pattern of racketeering activity; and 2) that
Appellants' claims brought under the "hindrance clause" of the
"Ku Klux Klan Act," 42 U.S.C. 1985(3), failed because
Appellants did not show "that the purpose of [Appellees'] alleged
conspiracy was to prevent or hinder law enforcement officers from
giving or securing to women their right to seek abortions." For
the following reasons, we affirm in part and reverse in part.
I. BACKGROUND I. BACKGROUND
A. The Parties A. The Parties ___________
____________________
1 Appellants also brought several pendant state law claims for
negligence, nuisance, and illegal use of amplifiers and
loudspeakers, which the district court dismissed without
prejudice. Those claims are not before us.
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Appellants initiated this action on behalf of women
seeking reproductive health services and their health care
providers. Among the named plaintiffs are two women using the
pseudonyms "Lydia Libertad" and "Emilia Emancipaci n." Both
Libertad and Emancipaci n are Puerto Rico residents and have
sought reproductive health services on the island. Another
plaintiff, Rosa C ceres, is the Clinic Administrator at the
Women's Metropolitan Clinic ("WMC") in R o Piedras, Puerto Rico,
which provides a range of reproductive health services including
abortion. WMC is owned in turn by plaintiff Oficinas M dicas.
Plaintiff Mary Rivera is the Clinic Supervisor and Director of
Counselling at the Cl nica Gineco-Quir rgica, ("Cl nica") which
also provides reproductive health services including abortion.
Plaintiffs Ana E. Gonz lez-D vila ("Gonz lez") and Dr. Rafael E.
Castro-De Jes s ("Castro") are, respectively, the administrator
and the medical director of plaintiff Ladies Medical Center
("LMC"), which also provides reproductive health services
including abortion. The Grupo Pro Derechos Reproductivos, an
abortion rights organization, is also a plaintiff.
Defendant Father Patrick Welch is the head of the anti-
abortion rights organization Pro-Life Rescue Team ("PLRT"), also
a named defendant. Defendants Donald Treshman and Reverend Ed
Martin are, respectively, the National Director and the Executive
Director of defendant Rescue America, a nationwide anti-abortion
rights group based in Houston. Defendant Norman Weslin is the
director of the defendant anti-abortion rights group the
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Sacrificial Lambs of Christ ("SLC"). Defendant Carlos S nchez is
a member of the anti-abortion rights group Pro-Vida.
B. Events Leading to this Action B. Events Leading to this Action _____________________________
We present the facts here in the light most favorable
to the Appellants. See Maldonado-Denis v. Castillo-Rodr guez, 23 ___ _______________ __________________
F.3d 576, 581 (1st Cir. 1994) (when reviewing grant of summary
judgment, record is examined in light most favorable to
nonmovant). Some or all of the Appellees staged protest
demonstrations, which they refer to as "rescues," at the
plaintiff clinics on five occasions: September 26, 1992,
September 28, 1992, December 17, 1992, December 24, 1992, and
January 8, 1993. During each of the five protests, Appellees
blockaded the clinics so that clinic personnel and patients could
not enter. Each blockade was carried out in a similar manner.
Typically, the protests began before the clinics opened, with
Appellees blocking access to the clinics and parking lots by
physically obstructing the entrances, linking their arms tightly
together and refusing to allow anyone to pass through. Outside,
the protesters shouted slogans through megaphones to clinic
personnel and patients, told patients that they were "murderers,"
screamed insults at clinic personnel, and videotaped or
photographed people as they attempted to enter and leave the
clinics. The protesters also defaced the clinic property by
affixing difficult-to-remove stickers depicting fetuses on the
walls and entrances, and by scrawling graffiti on the clinic
walls. During these blockades, litter was strewn around clinic
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property and on the properties of surrounding businesses. In
addition to effectively shutting down the clinics for all or part
of a day, these protests caused extensive and costly property
damage to the clinics.
Appellee Welch and some of the minor children who
protest with him have on occasion entered the clinics and
intimidated or harassed patients and staff. On September 26,
1992, Welch invaded the LMC and pushed plaintiff Gonz lez from
the clinic entrance all the way through the waiting room to the
back office, trapping her there for a number of hours. On
September 28, 1992, Welch and a young girl entered one of the
clinics and remained in the waiting room, despite being told to
leave by clinic staff. Patients with appointments would enter
and then leave when they recognized Welch in the waiting room.
Eventually, the police had to come and remove Welch and the young
girl.
The record indicates that of the five protests at issue
in this case, the January 8, 1993 protest is the only one at
which all of the Appellees, not just Welch and his followers,
participated. The tactics employed on January 8 were
considerably more aggressive. In addition to the above-mentioned
blockade methods, Appellees also blocked clinic access by parking
buses in front of clinic entrances and then refusing to move them
when instructed to do so by the police. Appellees chain-locked a
clinic entrance and then covered the lock with tape to prevent it
from being pried open. One clinic supporter received a death
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threat from a protester. The clinic suffered considerable
property damage as well; locks were filled with glue or gum, and
gates were broken or otherwise damaged to prevent entry.
When the police attempted to arrest protesters on
January 8, many protesters climbed under the motor vehicles to
avoid arrest. Demonstrators also used other delay tactics, such
as going limp when police arrested them, or lying down on the
ground and locking arms, thus making it nearly impossible for the
officers to physically remove them from the clinic property.
The evidence also indicates that some protesters actively
resisted arrest by assaulting officers, or by flailing their arms
to make the officer's task more difficult and time-consuming. At
one blockade, protesters poured acid in a police van in which
several arrestees were held, necessitating that they be taken out
of the van and further delaying the police.
The blockades demand that local law enforcement
officials expend a significant amount of time and resources;
between forty-five and sixty officers are usually deployed for
each protest. Law enforcement officials testified that they are
overwhelmed by the protesters' tactics, that they are unable to
either deter the blockades or keep the clinics open during the
blockades.
Some Appellees explained during depositions and at the
hearing that one reason for these tactics is to "buy time" for
the "unborn" -- i.e., to delay their arrests, thereby prolonging ____
the blockade of the clinic and delaying or preventing the clinic
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from resuming its business, particularly the performance of
abortions.
C. Procedural History C. Procedural History __________________
On January 8, 1993, Appellants filed the instant action
seeking a temporary restraining order, a preliminary injunction,
and a permanent injunction enjoining Appellees from using
unlawful force, harassment, intimidation, and physical
obstruction during their protests in front of Puerto Rico
clinics. The district court denied the motion for a temporary
restraining order, but held a hearing from February 4-9, 1993 on
Appellants' request for a preliminary injunction, during which
extensive testimonial and documentary evidence was presented by
both parties.
On February 9, 1993, during the hearing, Appellees'
counsel moved for dismissal of the complaint as to defendants SLC
and Rescue America on the grounds of defective service of
process.2 The court examined the record and found that service
on these defendants was defective because the summons failed to
state the name of the person served. The court attempted to have
the U.S. Marshal who had served the summons called into court to
testify, but the Marshal was unavailable. The court did not rule
at that time on the defective service of process issue, but
advised Appellants' counsel to "inquire" about the problem. At
____________________
2 Significantly, counsel for SLC and Rescue America was present
at the hearing, as well as all other court proceedings, and made
a general appearance in the case, rather than a special limited
appearance to contest proper service.
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the hearing's close, the court ordered the parties to submit
post-hearing briefs.
On November 1, 1993, the district court denied the
preliminary injunction, ruling that Appellants had not
demonstrated a reasonable likelihood of success on the merits of
their complaint, and that there existed no genuine dispute of
material facts. The court converted the Appellees' motions to
dismiss into motions for summary judgment pursuant to Fed. R.
Civ. P. 12(c), and ordered Appellants to show cause why summary
judgment should not be entered. Accordingly, on December 30,
1993, Appellants filed their opposition to summary judgment
accompanied by a statement alleging disputed material facts.
In March of 1994, responding to perceived threats by
Appellees to begin another round of blockades and protests,
Appellants filed a motion renewing their request for injunctive
relief. On May 3, 1994, the court denied this request, and
granted summary judgment in Appellees' favor. Specifically, the
court held 1) that Appellants' claims brought under 1962(c)
and (d) of RICO failed because Appellants did not show either the
existence of an enterprise or a pattern of racketeering activity;
and 2) that Appellants' claims brought under the "hindrance
clause" of 42 U.S.C. 1985(3) failed because Appellants did not
show "that the purpose of [Appellees'] alleged conspiracy was to
prevent or hinder law enforcement officers from giving or
securing to women their right to seek abortions." In the same
order, the court dismissed the claims against Rescue America and
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SLC on the grounds of defective service of process.
II. PRELIMINARY DISCUSSION II. PRELIMINARY DISCUSSION
A. Standard of Review A. Standard of Review __________________
Summary judgment is appropriate when "there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). We review a grant of summary judgment de novo, examining __ ____
the entire record in the light most favorable to the nonmovant
and indulging all reasonable inferences in that party's favor.
Maldonado-Denis, 23 F.3d at 581 (citations omitted); Pagano v. _______________ ______
Frank, 983 F.2d 343, 348 (1st Cir. 1993). _____
The movant must aver an "absence of evidence to support
the nonmoving party's case." The burden then shifts to the
nonmovant, the party opposing summary judgment, to establish the
existence of at least one fact issue which is both "genuine" and
"material." Maldonado-Denis, 23 F.3d at 581 (quoting Garside v. _______________ _______
Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (other citations _______________
omitted)). A "genuine" issue is one that properly can be
resolved only by a finder of fact because it may reasonably be
resolved in favor of either party. Id. In other words, a __
genuine issue exists "if there is 'sufficient evidence supporting
the claimed factual dispute' to require a choice between 'the
parties' differing versions of the truth at trial.'" Id. __
(quoting Garside, 895 F.2d at 48). A "material" issue is one _______
that might affect the outcome of the suit under the governing
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). ________ ___________________
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The nonmovant may not defeat a properly supported
motion for summary judgment by relying upon mere allegations or
evidence that is less than significantly probative. Id. at 249- __
50. Rather, the nonmovant must present definite, competent
evidence to rebut the motion. Maldonado-Denis, 23 F.3d at 581. _______________
B. Standing B. Standing ________
During oral argument, Appellees' counsel raised for the
first time in this case the issue of Appellants' standing to
bring their claims. Because standing is a jurisdictional
requirement which remains open to review at all stages of
litigation, National Org. for Women v. Scheidler, __ U.S. __, 114 _______________________ _________
S. Ct. 798, 802 (1994), we ordered the parties to submit
supplemental briefs on the question.
If a plaintiff lacks standing to bring a matter before
a court, the court lacks jurisdiction to decide the merits of the
underlying case. United States v. AVX Corp., 962 F.2d 108, 113 _____________ _________
(1st Cir. 1992). Thus, standing is a threshold issue,
determining whether the court has the power to hear the case, and
whether the putative plaintiff is entitled to have the court
decide the merits of the case. Id. The inquiry into a __
plaintiff's standing "involves a blend of constitutional
requirements and prudential considerations." Valley Forge _____________
Christian Coll. v. Americans United for Separation of Church and _______________ _____________________________________________
State, 454 U.S. 464, 471 (1982). _____
There are three irreducible, minimum constitutional
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elements of standing. Lujan v. Defenders of Wildlife, __ U.S. _____ ______________________
__, 112 S. Ct. 2130, 2136 (1992). First, a plaintiff must have
suffered an "injury in fact" -- an invasion of a legally-
protected interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical. Id. __
(footnote and internal quotations omitted). Second, there must be
a causal connection between the injury and the conduct complained
of, such that the injury is fairly traceable to the challenged
action of the defendant and not the result of the independent
action of some third party not before the court. Id. Finally, __
it must be likely, and not merely speculative, that the injury
will be redressed by a favorable decision. Id. __
To establish these elements of standing at the summary
judgment stage of a proceeding, a plaintiff cannot rest on mere
allegations, but must set forth by affidavit or other evidence
specific facts which for purposes of the summary judgment motion
will be taken to be true. Id. at 2137. __
In addition to these constitutionally required
elements, the doctrine of standing also involves prudential
considerations. Specifically, a court must determine 1) whether
a plaintiff's complaint falls within the zone of interests
protected by the law invoked; 2) whether the plaintiff is
asserting its own rights and interests, and not those of third
parties;3 and 3) that the plaintiff is not asking the court to
____________________
3 An exception to this general rule is that associations may
assert the claims of their members in certain circumstances,
discussed below.
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adjudicate abstract questions of wide public significance which
amount to generalized grievances more appropriately addressed by
the legislature. AVX Corp., 962 F.2d at 114 (citations omitted). ________
Finally, the Supreme Court has stated that a RICO
plaintiff seeking to invoke a court's jurisdiction must also
establish that she has been injured in her business or property
by the conduct allegedly constituting the RICO violation.
Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). _________________ ________________
With these principles in mind, we address whether the Appellants
have standing as to each claim.
1. Appellants' standing to bring a RICO claim 1. Appellants' standing to bring a RICO claim __________________________________________
Appellees first contend that Appellants lack standing
to assert claims under 1962(c) and (d) of RICO. Specifically,
they argue that Libertad, Emancipaci n, and Grupo Pro Derechos
Reproductivos ("Grupo Pro Derechos") lack standing to bring a
RICO claim because they suffered no injury to business or
property. Second, Appellees argue that the three clinics and
Gonz lez, C ceres, and Castro lack standing under RICO because
they have failed to show that Appellees' actions proximately
caused them any injury.
a. Do Libertad and Emancipaci n have standing? a. Do Libertad and Emancipaci n have standing?
Libertad and Emancipaci n are women who have sought
reproductive health services at the blockaded clinics. Libertad
submitted a sworn statement in support of Appellants' opposition
to summary judgment, in which she described her experience at the
WMC. She stated that the anti-abortion protesters intimidated
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her and made her angry; however, the protesters did not prevent
her from attending her appointment at the clinic and obtaining an
abortion.
Emancipaci n testified at the summary judgment hearing
about her experience at the blockaded clinic. Unlike Libertad,
Emancipaci n was intimidated enough by the Appellees' blockade
and protest tactics that she was deterred from entering the
clinic for her appointment. Emancipaci n eventually returned to
the clinic on a different day, however, and there is no
indication that the delay caused her any physical harm.
Although we acknowledge that both women reasonably felt
intimidated and harassed, neither woman suffered any injury to
business or property, as is required for standing to sue under
RICO. We therefore hold that Libertad and Emancipaci n do not
have standing to maintain this RICO claim.
b. Does the Grupo Pro Derechos have standing? b. Does the Grupo Pro Derechos have standing?
Appellant Grupo Pro Derechos is an association of
feminist and human rights organizations and individuals. The
group's mission is to defend women's reproductive rights, and to
work for quality women's health services, sex education, and
family planning. It allocates some of its resources to providing
protection for women who patronize a blockaded clinic, and sues
on its own behalf and on behalf of its members.
We have combed through the voluminous record and have
been unable to find any evidence, or even any specific
allegation, that the Grupo Pro Derechos has sustained any injury
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to business or property as a result of Appellees' conduct. One
of the organization's members, Ms. Nancy Herzig Shannon,
testified that while at one of the blockaded clinics, she
received a death threat from a protester. She is not herself a
named plaintiff, however, and she did not testify about any
injury sustained by the group, such as expended resources,
property damage, foregone business activities, or extortionate
threats to its general membership. While the conduct of the
protesters, lawful and unlawful, certainly conflicts with the
group's mission and renders their objectives more difficult to
achieve, this by itself does not give rise to an injury to the
group's business or property interests. We therefore hold that
the Grupo Pro Derechos does not have standing to maintain this
RICO cause of action.4
c. Do the remaining Appellants have standing? c. Do the remaining Appellants have standing?
Appellees claim that the remaining Appellants, the
three clinics and their directors or administrators, lack
standing to bring the RICO claim because they have failed to show
____________________
4 Plaintiffs like Libertad and Emancipaci n could have standing
to sue under RICO, if they were to submit sufficient evidence of
injury to business or property such as lost wages or travel
expenses, actual physical harm, or specific property damage
sustained as a result of a RICO defendant's actions. The record
before us, however, does not sufficiently establish this required
element. Similarly, it is not impossible for unincorporated
groups and organizations to have standing under RICO, if the
group could meet the tests for associational or representational
standing, see, e.g., Pennell v. City of San Jos , 485 U.S. 1, 7 ___ ____ _______ _________________
n.3 (1988), and could sufficiently establish that a RICO
defendant's conduct caused it some injury to business or
property.
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that Appellees' acts proximately caused them injury.5 Even a
cursory review of the record, particularly of the testimony
adduced at the summary judgment hearing, belies this argument.
The record is replete with evidence of the extensive property
damage caused by Appellees' blockades at the clinics: broken
____________________
5 Appellees also claim that these Appellants lack standing
because they "lack" the necessary two predicate acts. As
Appellees point out, to prove a violation of RICO, a plaintiff or
plaintiffs must show a minimum of the two necessary "predicate
acts" which allegedly constitute a "pattern of racketeering
activity." See 18 U.S.C. 1961(5). Appellees contend that ___
because the record shows the WMC and LMC clinics were the targets
of only one blockade each, neither of them can sue under RICO.
This argument simply has no merit. An analysis of a
plaintiff's standing focuses not on the claim itself, but on the
party bringing the challenge; whether a plaintiff's complaint
could survive on its merits is irrelevant to the standing
inquiry. Family & Children's Ctr. v. School City of Mishawaka, _________________________ _________________________
13 F.3d 1052, 1058 (7th Cir. 1994); see also Washington Legal _________ _________________
Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir. ______ _________________________
1993) ("Our standing inquiry depends on whether the plaintiffs
have established the existence of a case or controversy . . . but
does not involve the merits of particular claims."). The "two-
act minimum" is a part of the substantive "pattern" element of a
RICO cause of action, not a threshold requirement necessary to
confer standing. See 18 U.S.C. 1961(5) and 1962; Fleet Credit ___ ____________
Corp. v. Sion, 893 F.2d 441, 444 (1990). _____ ____
Moreover, nowhere in either the text of RICO or the case law
is there any suggestion that each victim of an alleged pattern of ____ ______
racketeering activity must have suffered at least two predicate
acts at the hands of the defendant. In fact, adopting such a
requirement would conflict with the statute's purpose and
seriously curtail the statute's intended breadth. Under the
Appellees' proposed scheme, a defendant could avoid RICO
liability simply by continually choosing new targets for his
unlawful activities, a result that Congress could not have
intended. In the instant case, each Appellant clinic was the
target of Appellees' unlawful blockades. Each blockade was
executed in a similar fashion with exactly the same purpose -- to
delay or prevent the clinics from opening and providing
abortions. Therefore, that the LMC and WMC were only blockaded
once each is irrelevant to either their standing under RICO, or
to the merits of their claim. It is sufficient that the clinics
have been among the targets of Appellees' five blockades.
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locks, damaged gates, vandalism, strewn litter on the grounds, to
list examples. Appellee Welch and his followers also did damage
inside the clinics, ripping out electrical sockets and jamming
door locks. The blockades also delayed or prevented the clinics
from conducting business on those days. We therefore find that
Appellants have sufficiently shown injury to business or
property, and that this injury was proximately caused by
Appellees.
As to the third, "redressibility" element of standing,
Appellants seek, among other things, declaratory and injunctive
relief from the Appellees' blockade activities -- the same
activities that caused their injury. This satisfies the
"necessary causal connection between the injury alleged and the
relief requested," Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 37 _________________ _________
(1st Cir. 1993), and we therefore find that the remaining
Appellants have established the constitutional requirements
necessary to confer standing.
Over and above these constitutional requisites, an
analysis under the standing doctrine also embraces prudential
concerns regarding the proper exercise of the court's
jurisdiction. Vote Choice, Inc., 4 F.3d at 37. The remaining __________________
Appellants satisfy these concerns. They are asserting their own
rights and interests in conducting their lawful business; their
grievances are particularized and concrete; and the Appellants
fall within the zone of interests contemplated by the explicit
terms of the RICO statute -- namely, "person[s] injured in
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[their] business or property" by an alleged pattern of
racketeering activity. 1964(c); see also, Sedima, S.P.R.L., 473 ________ ________________
U.S. at 483, 497 (discussing the "far-reaching civil enforcement
scheme" established by RICO, and rejecting restrictive readings
of the statute's intended scope).
Accordingly, we hold that the remaining Appellants --
the clinics, C ceres, Oficinas, Rivera, Gonz lez, and Castro --
all have standing to maintain this RICO claim.6
2. Appellants' standing to maintain a 1985(3) claim 2. Appellants' standing to maintain a 1985(3) claim __________________________________________________
Appellees also contend that Appellants lack standing to
____________________
6 Appellees somewhat cryptically claim that Appellants have
failed to establish that their injuries were proximately caused
by the alleged underlying RICO violation, which in this case is
extortion under the Hobbs Act, 18 U.S.C. 1951(b)(2) (1984).
Under this provision, extortion means "the obtaining of property
from another, with his consent, induced by wrongful use of actual
or threatened force, violence, or fear." The intangible right to
freely conduct one's lawful business contitutes "property" for
purposes of this section. See Northeast Women's Ctr. v. ___ ________________________
McMonagle, 868 F.2d 1342, 1350 (3d Cir.), cert. denied, 493 U.S. _________ _____ ______
901 (1989).
If Appellees are contending that Appellants have not
sufficiently proven the underlying extortion claim, this
contention again goes to the substantive merits of Appellants'
case, and not to the threshold issue of standing. Moreover, the
record clearly shows that Appellees used force (physical
obstruction, trespass, vandalism, resisting arrest),
intimidation, and harassment of clinic personnel and patients,
with the specific, uniform purpose of preventing the clinics from
conducting their normal, lawful activities. The record also
amply shows that Appellees' tactics include the intentional
infliction of property damage, and directly result in the
clinics' loss of business. It is difficult to conceive a set of
facts that more clearly sets forth extortion as it is defined by
1951(b)(2). We therefore are satisfied that, for the limited
purpose of maintaining their RICO claims, Appellants have
sufficiently established that Appellees' blockades constitute
extortion, and that the extortionate acts proximately caused
injury or damage to Appellants' property.
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maintain their claim under the hindrance clause of 42 U.S.C.
1985(3).7 They argue that claims under the hindrance clause
require a showing of 1) a class-based, invidiously discriminatory
animus, and 2) the assertion of a right protected against both
private, as well as official, encroachment.8 As we will discuss
below, it is not entirely clear that Appellees' interpretation of
the hindrance clause's requirements is correct.
In any event, their interpretation is irrelevant to the
issue of Appellants' standing to maintain a 1985(3) hindrance
clause claim, because Appellees have once again confused the
substantive elements of a cause of action with the threshold
requirements necessary to confer standing. Appellants need not
establish the elements of their cause of action in order to sue, ___
only to succeed on the merits. In order to have standing to sue, _______
Appellants must only establish that the constitutional and
prudential considerations set forth above are satisfied.
It is clear that Appellants satisfy the requirements
for standing. First, for reasons similar to those set forth
above, the clinics, C ceres, Oficinas, Rivera, Gonz lez, and
Castro all have standing. They all have sufficiently established
an injury-in-fact, either to their physical plant, their
____________________
7 The hindrance clause of 1985(3) prohibits a conspiracy "for
the purpose of preventing or hindering the constituted
authorities . . . from giving or securing to all persons . . .
the equal protection of the law."
8 Appellees base their arguments on Bray v. Alexandria Women's ____ __________________
Health Clinic, __ U.S. __, 113 S. Ct. 753 (1993), in which the _____________
Supreme Court held that successful claims under the
"deprivation" clause of 1985(3) must establish these elements.
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intangible property right to conduct lawful business, or both.
They have also sufficiently established that the Appellees'
activities proximately caused their injuries, and that the relief
they seek here will redress those injuries.
Although Libertad and Emancipaci n did not allege or
establish an injury to business or property sufficient to invoke
the court's jurisdiction on their RICO claim, they have
established an injury-in-fact sufficient to maintain their
1985(3) claim. The injury-in-fact requirement "serves to
distinguish a person with a direct stake in the outcome of a
litigation -- even though small -- from a person with a mere __________________
interest in a problem." United States v. Students Challenging _____________ ____________________
Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 690 n.14 ______________________________________
(1973) (citations omitted) (emphasis added). Therefore,
plaintiffs such as Libertad and Emancipaci n need not establish a
particularly damaging injury; they need only show that they were
directly affected by the conduct complained of, and therefore
have a personal stake in the suit. See also Adams v. Watson, 10 ________ _____ ______
F.3d 915, 918 (1st Cir. 1993) (noting that the contours of the
injury-in-fact requirement are "generous," and that even a slight
injury suffices to confer standing). Both Libertad and
Emancipaci n had appointments at, and attempted to enter, one of
the blockaded clinics. Both were, therefore, targets of the
Appellees' activities which form the basis for the alleged
conspiracy in violation of 1985(3), and both were affected by
the alleged conspiracy to a degree sufficient to confer standing.
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These Appellants also satisfy the prudential
considerations involved in the standing inquiry. First, their
claims do not fall outside the reasonable "zone of interests" of
1985(3), which purports to afford remedial relief to all
citizens. See Bray, __ U.S. at __, 113 S. Ct. at 785 (Stevens, ___ ____
J., dissenting) (discussing the statute's legislative history and
intended scope). Second, although the Appellants claim to bring
this suit in part on behalf of all women in Puerto Rico seeking
family planning services, they are also suing on their own behalf
and are therefore asserting their own concrete rights or
interests. Finally, their claims are not abstract questions or
generalized grievances, but instead are sufficiently
particularized, such that they may appropriately be addressed by
the judiciary. We therefore hold that Libertad, Emancipaci n,
the clinics, C ceres, Oficinas, Rivera, Gonz lez, and Castro all
have standing to maintain their claim under the hindrance clause
of 1985(3).
The Grupo Pro Derechos is the only Appellant whose
standing under 1985(3) is still in question. Because Grupo Pro
Derechos is an association whose standing is premised not on
injury to itself but to others, we apply the test for
"associational standing," which is slightly different than the
traditional standing inquiry. It is well settled that an
association may sue on behalf of its members when 1) at least one
of its members possesses standing to sue in his or her own right;
-20-
2) the interests that the suit seeks to vindicate are pertinent
to the objectives for which the organization was formed; and 3)
neither the claim asserted nor the relief demanded necessitates
the personal participation of affected individuals. AVX Corp., _________
962 F.2d at 116 (citations omitted).
That Grupo Pro Derechos satisfies the second and third
prongs of this analysis is not reasonably subject to debate. The
interests of its suit here -- to prevent unlawful blockade
activities at abortion clinics in Puerto Rico in order to ensure
access to family planning services for Puerto Rican women -- is
not only pertinent to the group's purpose, it is its primary __
purpose. Nor do the group's claims here require that each of its
members participate in the suit or in the relief demanded.
The only real issue is whether the Grupo Pro Derechos
satisfies the first prong -- that is, whether at least one of its
members has standing to assert the claims in his or her own
right. In the Appellants' amended complaint, the group is
described as an association of feminist and human rights
organizations and individuals. Among its members is Nancy Herzig
Shannon, who testified that she was harassed during one of the
blockades, and received a death threat from a protester. This is
certainly enough to confer standing on her. Because it is not
contested that Herzig is a member of Grupo Pro Derechos and she
has standing on her own to sue, we hold that the Grupo Pro
Derechos has associational standing to maintain the 1985(3)
claim.
-21-
C. Appellees' claims of defective service of process C. Appellees' claims of defective service of process
Appellants contend that the district court erroneously
dismissed their claims against SLC and Rescue America due to
defective service of process. Specifically, the court found that
the service was defective because the summons failed to state the
name of the person served. The court's dismissal, claim the
Appellants, was based on its incorrect assumption that Appellants
had conceded the issue of improper service, and was granted sua ___
sponte without affording them an opportunity to defend the ______
service.
In fact, claim the Appellants, all the defendants,
including SLC and Rescue America, were personally served by U.S.
Marshals, and return of service was filed with the district
court. Rescue America and SLC were both served through a proper
agent as authorized by Fed. R. Civ. P. 4(h). For Rescue America,
the U.S. Marshals served both Treshman, the group's National
Director, and Martin, the group's Executive Director. For SLC,
the Marshals served Weslin, the group's national director.
We have held that "the root purpose underlying service
of process is to ensure that a defendant receives fair notice of
the suit and adequate opportunity to protect her interests."
Jardines Bacata, Ltd. v. D az-M rquez, 878 F.2d 1555, 1559 (1st ______________________ ____________
Cir. 1989). When an alleged defect in service is due to a minor,
technical error, only actual prejudice to the defendant or
evidence of a flagrant disregard of the requirements of the rules
justifies dismissal. 4A C. Wright and A. Miller, Federal _______
-22-
Practice & Procedure, Civ. 2d 1088; Benjamin v. Grosnick, 999 ____________________ ________ ________
F.2d 590, 594 (1st Cir. 1993) (dismissal for defective service
not required where defect in service did not prejudice
defendant); see also, Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. ________ ______ ______
1984) (dismissal for defective service should be granted only
when defendant was prejudiced); United Food & Comm'l Workers ______________________________
Union Int'l v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. ___________ _______________
1984) (dismissal is generally not justified absent a showing of
prejudice, and defendant's answer and general appearance in
action should prevent any technical error from invalidating
entire process).
Here, Appellees do not claim that they suffered any
prejudice from the minor, technical defect in the summonses, and
we do not discern any prejudice. It is clear that at all times
during the proceedings, Rescue America and SLC had fair notice of
the suit, and adequate opportunity to protect their interests.
Both parties' counsel made general appearances at every stage of
the proceeding, and had ample opportunity to defend against the
Appellants' claims. Dismissing the claims against Rescue America
and SLC exalts the form of Rule 4 over its substance and purpose.
We therefore find that the district court improperly dismissed
the Appellants' claims against Rescue America and SLC on these
grounds, and we accordingly reinstate the claims against these
Appellees. We may now turn to the substance of Appellants'
claims.
III. ANALYSIS III. ANALYSIS
-23-
A. Appellants' RICO claims A. Appellants' RICO claims _______________________
Appellants allege that Appellees have conspired to, and
have conducted or participated in the conduct of an enterprise
through a pattern of racketeering activities, specifically with
intent to extort Appellants' property interest in their business
and practice of health care, all in violation of 1962(c) and
(d) of RICO.9
To state a claim under 1962(c), a plaintiff must
allege each of the four elements required by the statute: 1)
conduct; 2) of an enterprise; 3) through a pattern; 4) of
racketeering activity. Feinstein v. Resolution Trust Corp., 942 _________ ______________________
F.2d 34, 41 (1st Cir. 1991) (citing Sedima, S.P.R.L., 473 U.S. at ________________
496). For claims under 1962(d), a plaintiff must show that
each defendant in the RICO conspiracy case joined knowingly in
the scheme and was involved himself, directly or indirectly, in
the commission of at least two predicate acts. Feinstein, 942 _________
F.2d at 41 (citations omitted); see also United States v. _________ ______________
Angiulo, 847 F.2d 956, 964 (1st Cir.) (necessary elements of RICO _______
conspiracy charge are 1) existence of enterprise; 2) that each
defendant knowingly joined the enterprise; and 3) that each
defendant agreed to commit, or in fact committed, two or more
predicate acts as part of his participation in enterprise), cert. _____
____________________
9 Section 1962(c) of RICO makes it unlawful "for any person
employed by or associated with any enterprise engaged in, or the
activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of
such enterprise's affairs through a pattern of racketeering
activity . . . ." Section 1962(d) makes it unlawful for any
person to conspire to violate 1962(c).
-24-
denied, 488 U.S. 852 (1988). ______
1. Have Appellants established an "enterprise"? 1. Have Appellants established an "enterprise"? ___________________________________________
The term "enterprise" is defined in the RICO statute as
including "any individual, partnership, corporation, association,
or other legal entity, and any union or group of individuals ___
associated in fact although not a legal entity." 1961(4) ____________________
(emphasis added). There are, therefore, two types of
enterprises: legal entities and associations-in-fact. United ______
States v. Turkette, 452 U.S. 576, 580-581 (1981). The Supreme ______ ________
Court has explained that in order to prove a RICO claim, a
plaintiff must show both an "enterprise" and a "pattern of
racketeering activity." Turkette, 452 U.S. at 583. The ________
enterprise is an entity, a group of persons associated for a
common purpose of engaging in a course of conduct. The pattern
of racketeering activity, on the other hand, is a series of
criminal acts as defined by the RICO statute. The former is
proved by "evidence of an ongoing organization, formal or
informal, and by evidence that the various associates function as
a continuing unit." Id. The latter is proved by "evidence of __
the requisite number of acts of racketeering committed by the
participants in the enterprise." Id. While the proof used to __
establish these separate elements may "coalesce," proof of one
does not necessarily establish the other. Id. The "enterprise" __
is not the "pattern of racketeering activity;" it is an entity
apart and distinct from the pattern of activity in which it
engages. The existence of an enterprise is, therefore, a
-25-
separate element which must be proven. Id. __
The enterprise need not be a profit-seeking entity, or
a victim of unlawful activities. Scheidler, 114 S. Ct. at 804. _________
Rather, the enterprise may be the "vehicle" through which the
unlawful pattern of racketeering activity is committed. Id. __
In addition, we have consistently held that the same
entity cannot do "double duty" as both the RICO defendant and the
RICO enterprise. See, e.g., Miranda v. Ponce Federal Bank, 948 ___ ____ _______ ___________________
F.2d 41, 44-45 (1st Cir. 1991) (citations omitted). The person
or persons alleged to be engaged in racketeering activity must be
entities distinct from the enterprise. Odishelidze v. Aetna Life ___________ __________
& Casualty Co., 853 F.2d 21, 23 (1st Cir. 1988) (per curiam). In ______________
other words, because the racketeer and the enterprise must be
distinct, Miranda, 948 F.2d at 45, the enterprise must be an _______
entity separate from the named defendants who are allegedly
engaging in unlawful activity.
The district court granted summary judgment against
Appellants, finding that they had failed to show the existence of
an "enterprise." Relying on Turkette, the court held that ________
Appellants had adduced no evidence that the Appellees formed an
association-in-fact or that they functioned as a continuing unit.
The district court reasoned that the record shows only that the
Appellees came together for one "ephemeral gathering," the clinic
blockade in Puerto Rico on January 8; it does not, the court
continued, indicate that this activity emanated from an
association distinct from the activities themselves. Appellants
-26-
now contend that the district court erred in granting summary
judgment on these grounds.
Appellants have offered evidence regarding the
structure, organization, and various activities of the Appellees
Rescue America, SLC, and PLRT, and claim that it establishes that
each of these groups is an "association-in-fact" enterprise.
This argument, however, misses the point of our holdings in
Miranda, 948 F.2d at 44-45 and the cases cited therein. To _______
support the Appellants' RICO claim, the record must contain
evidence that the Appellees -- Rescue America, SLC, PLRT, and the
individuals -- constitute and operate as part of an association-
in-fact enterprise. In other words, Appellants must show the
existence of the enterprise, of which the Appellees were a part. __ _____
As a matter of law, it is not sufficient that several organized,
ongoing groups come together for one concerted action, unless ______
those groups can also be shown to constitute a larger unit, over
and above their separate structures and operations,10 and that
this unit meets the Turkette criteria for an "association-in- ________
fact."
We disagree with the district court's characterization
of the January 8 blockade as an "ephemeral gathering"; despite
Appellees' protestations to the contrary, it is clear that a
____________________
10 This is not to say that the separate structures and distinct
activities of each Appellee are irrelevant. Evidence of
structure, organization, or operations could indicate that the
groups' regular course of conduct involves their functioning as
part of a larger enterprise. It is not, however, sufficient in
itself to show the existence of the enterprise.
-27-
substantial amount of planning and coordination occurred among
the Appellees in preparation for the January 8 incident.11
This evidence alone, however, is insufficient to show an
enterprise. There are five clinic blockades at issue here; at
only the January 8 protest, however, were all of the Appellees
present or represented. The record shows that the other four
protests were organized and conducted solely by Appellee Welch,
members of the PLRT, and on one occasion, Carlos S nchez.
Evidence of the one blockade's coordination therefore does not
lead ineluctably to a conclusion that the Appellees belong to or
constitute an ongoing organization that functions as a continuing
unit.
Appellants contend that under the generous standard of
review for summary judgment, this one well-planned blockade could _____
indicate the existence of an enterprise, and that summary
judgment was therefore improperly granted. We have repeatedly
held, however, that mere conjecture does not suffice to create a
factual dispute and overcome a summary judgment motion. Thomas ______
v. Metropolitan Life Ins. Co, 40 F.3d 505, 508 (1st Cir. 1994) __________________________
(citations omitted). While the January 8 blockade "could" be
just the tip of the alleged enterprise's iceberg, this
speculation can not defeat summary judgment. Without more, one
could just as reasonably speculate that the January 8 blockade
____________________
11 These planning efforts include the financing and arranging of
Treshman and Martin's travel to Puerto Rico, drafting and
issuance of press releases, preparation of banners, placards, and
flyers, and the coordination of meetings, press conferences and
the blockades themselves.
-28-
was a well-coordinated but one-time activity of several similar
but otherwise unconnected parties, and not an act by members of
an ongoing organization.
The Appellants also argue that because there were
numerous blockades, all using the same methods and involving
similar groups and individuals, and all for the purpose of
preventing abortions, it follows that an enterprise exists.
Certainly, these Appellee organizations and individuals have
similar objectives, and use similar methods of attaining those
goals -- some lawful or even constitutionally protected, some
not. Yet similarity of goals and methods does not suffice to
show that an enterprise exists; what is necessary is evidence of
systemic linkage, such as overlapping leadership, structural or
financial ties, or continuing coordination.
Furthermore, we are mindful of the Supreme Court's
admonition in NAACP v. Claiborne Hardware Co., 458 U.S. 866, 930- _____ ______________________
932 (1982), that liability for mere membership in an association,
particularly when that association is ideological, may conflict
with the First Amendment. See also Scheidler, 114 S. Ct. at 807 ________ _________
(Souter, J., concurring) (discussing possible First Amendment
issues raised by RICO actions against protest groups). In light
of these constitutional concerns, it is particularly important
that Appellants present sufficient evidence, beyond the
Appellees' similarity of viewpoint, rhetoric and strategy, to
show an enterprise.
To this effect, Appellants have submitted a press
-29-
release12 written in Spanish and issued by Rescue America in
Houston, dated March 4, 1994 (one year after the blockades), the
certified translation of which reads in pertinent part:
Don Treshman, the controversial national
director of the anti-abortion group
Rescue America, announced today in
Houston a campaign to stop all abortions
in Puerto Rico. Treshman stated that
worldwide Puerto Rico is already
considered a pro-life success because of
the actions taken by a local affiliated __________
group, the Pro-Life Rescue Team. 'The
time is coming to finish what we have ________________________
started,' said Treshman. At the same _______
time, Treshman announced that Father
Patrick Welch will arrive in Puerto Rico
tomorrow . . . . Father Welch was
arrested together with Treshman last year
as a result of a blockade in front of an
abortion clinic in San Juan . . . .
'Father Welch is representing Rescue ____________________
America as the regional director' . . . ______________ _________________
Rescue America is well known for its
creative tactics used to block abortion
clinics in all parts of the United States
and in other countries. Treshman said
that it is 'very probable' that an anti- _________
abortionist group from the United States _________________________________________
may come to Puerto Rico within a short
time, for the second time 'to participate ___________________________________
with local pro-life groups.' He refused ___________________________
to indicate whether the radical group is
planning to block access to some of the
abortion facilities . . . , but he said
that 'they will use all the methods that ___________________________________
they believe necessary to save the lives ______________________
of the innocent unborn.' Father Welch
____________________
12 We reject Appellees' contention that the press release is
inadmissible hearsay. The press release is not hearsay, but
admissible evidence as an admission of a party-opponent under
Fed. R. Evid. 801(d)(2)(A).
Appellants also point to statements allegedly made by Welch
and reported in a local newspaper as supporting the existence of
an enterprise. These newspaper articles, unlike the press
release, are hearsay, and thus inadmissible to prove the truth of
the matters asserted therein.
-30-
will supposedly give more details during
a press conference today . . . .
(Emphasis added). Additionally, although Appellee Welch denied
that the PLRT was affiliated with any other organization, he
stated that he "shared information" with other groups, including
Rescue America, on a regular basis, by faxing and mailing
tactical manuals, videos, pamphlets, press releases, and activity
updates to one another.
These facts, viewed in the light most favorable to the
Appellants, strongly suggest that the Appellees Rescue America,
PLRT, Welch, and Treshman constitute or are part of an
"association-in-fact." Rescue America's press release claiming,
if not boasting of, its "affiliation" with the PLRT, and naming
Welch as a "regional director," is highly competent evidence that
the two groups are connected in a somewhat formal sense, and that
they share common leaders or organizers -- in other words, that
they function as a continuing unit. That the press release
announced the groups' plans to "continue" their efforts in Puerto
Rico, over a year after the blockades, also indicates a ongoing _____
relationship among those Appellees. We therefore find that the
Appellants have adduced sufficient evidence of an "enterprise"
among Rescue America, Welch, Treshman, and the PLRT to defeat
summary judgment, and we reverse the district court's ruling as
to the existence of an enterprise.
Appellants have not, however, pointed to any competent
evidence that the Appellees Weslin, Martin, or the SLC have been
or are associated with any of the other Appellees on an ongoing
-31-
basis, or that they function with them as part of a continuing
unit. In fact, the record shows nothing more than that those
Appellees planned and participated in one blockade with the
others. Furthermore, although Welch testified that he
communicates with Appellee S nchez as often as every other day
about their groups' activities, he denied that they ever
discussed blockades, and we find no evidence in the record to
indicate otherwise, or suggesting that S nchez is associated with
the PLRT or Welch. We therefore find that the Appellants have
not adduced sufficient evidence that Weslin, Martin, S nchez, and
the SLC are part of any RICO enterprise, and affirm the district
court's dismissal of Appellants' RICO claims as to those
Appellees only.
2. Have Appellants established a "pattern of 2. Have Appellants established a "pattern of __________________________________________________
racketeering activity"? racketeering activity"? ______________________
Under the terms of the RICO statute, a "pattern of
racketeering activity requires at least two acts of racketeering
activity." 18 U.S.C. 1961(5). The definitional section "does
not so much define a pattern of racketeering activity as state a
minimum necessary condition for the existence of such a pattern."
H.J. Inc., 492 U.S. at 237. The two predicate acts of __________
racketeering activity must be acts chargeable or indictable under
any one or more of certain specified criminal laws. Feinstein, _________
942 F.2d at 42; 18 U.S.C. 1961(1)(B). These acts include
-32-
"extortion" as it is defined in the Hobbs Act, 18 U.S.C.
1951(b)(2).13 In addition, a RICO plaintiff must demonstrate
that the predicate acts are related, and that they amount to or
pose a threat of continued criminal activity. H.J. Inc., 492 _________
U.S. at 237.
a. Relatedness a. Relatedness
We have noted that "the relatedness test is not a
cumbersome one for a RICO plaintiff." Feinstein, 942 F.2d at 44. _________
A RICO plaintiff establishes that predicate acts are related by
demonstrating that they "have the same or similar purposes,
results, participants, victims, or methods of commission, or
otherwise are interrelated by distinguishing characteristics and
are not isolated events." H.J. Inc., 492 U.S. at 241; see also _________ ________
Fleet Credit Corp., 893 F.2d at 445. A fact-specific allegation ___________________
of a single common scheme can be used to satisfy the relatedness
requirement. Feinstein, 942 F.2d at 44. As the district court _________
succinctly and correctly noted, there is little doubt in this
case that the alleged predicate acts are related.
Appellees state, however, that the "relatedness"
requirement is not met as to Treshman and Rescue America, as the
record does not reflect that they engaged in more than one
predicate act. This bare assertion seems to rest on the faulty
____________________
13 As we explained above, this provision defines extortion as
"the obtaining of property from another, with his consent,
induced by wrongful use of actual or threatened force, violence,
or fear." The intangible right to freely conduct one's lawful
business contitutes "property" for purposes of this section.
Northeast Women's Ctr., 868 F.2d at 1350. ______________________
-33-
premise that each blockade constitutes only one predicate act.
Appellees ignore the possibility that more than one predicate act
-- that is, more than one act that constitutes extortionate
activity -- may have been committed at each blockade, including
the January 8 blockade in which Rescue America and Treshman
participated. For example, several instances of vandalism,
harassment, and verbal threats occurred at the one blockade at
which Treshman and Rescue America were present; each instance is
arguably an extortionate, predicate act.
Furthermore, the physical presence of all the Appellees
in Puerto Rico is not necessarily required for the acts to be
related, particularly for the Appellants' conspiracy claim. We
have held that "a RICO conspiracy [under 1962(d)] does not
demand total fusion or that all defendants participate in all
racketeering acts, know of the entire conspiratorial sweep, or be
acquainted with all other defendants." United States v. Boylan, _____________ _______
et al., 898 F.2d 230, 242 (1st Cir.), cert. denied, 498 U.S. 849 ______ _____ ______
(1990). The plaintiff need only show that the component parts of
a conspiracy were linked together in such a way as to afford a
plausible basis for the inference that an agreement existed. Id. __
A RICO conspiracy claim under 1962(d) thus covers direct and
indirect participation in a predicate act, including preparation,
planning, and direction. We therefore affirm the district
court's ruling that the Appellants have established that the
predicate acts are related.
b. Continuity b. Continuity
-34-
In order to establish the continuity of the predicate
acts, a plaintiff must show either 1) that the acts amount to
continued criminal activity, in that the related acts extend over
a period of time; or 2) that the predicate acts, though not
continuous, pose a threat of continued activity. H.J. Inc., 492 _________
U.S. at 242; Fleet Credit Corp., 893 F.2d at 446. Because RICO __________________
was intended by Congress to apply only to enduring criminal
conduct, predicate acts extending over a few weeks or months do
not generally satisfy this requirement. Feinstein, 942 F.2d at _________
45. Under the second, "threat" approach, however, even where the
predicate acts occur in a narrow time frame, the requirement can
still be satisfied by demonstrating "a realistic prospect of
continuity over an open-ended period yet to come." Id. This __
approach "necessitates a showing that 'the acts themselves
include a specific threat of repetition extending indefinitely
into the future, [or] . . . are part of an ongoing entity's
regular way of doing business.'" Id. (quoting H.J. Inc., 492 __ _________
U.S. at 242).
Under the first method of establishing continuity, the
district court found, we think correctly, that the five blockades
over a three-month period did not constitute a closed-end period
of continued criminal conduct. Appellants do not specifically
contest this finding here. Rather, they challenge the district
court's finding that the record does not reveal "a realistic
prospect that the activity challenged in this suit will resume
with enduring effects," and that therefore, no continuity was
-35-
established.
Appellants point out that the predicate acts involved
in this case -- the blockades, vandalism, and the threatening
harassment of clinic personnel and patients -- are part of the
regular way that the defendants conduct their ongoing activities.
The entire purpose of Rescue America, the PLRT, and their
leaders, contend the Appellants, is preventing abortions, and
they do this by regularly using unlawful as well as lawful
tactics. Appellants further argue, and the record shows, that
part of the Appellees' strategy is to strike randomly with little
or no warning of which clinic they will target, making it
inherently difficult or impossible to determine whether and when
they will blockade again. There is also evidence that Rescue
America has been conducting protests and blockades for several
years, and shows no signs of abating or changing its unlawful
tactics. Indeed, the March 4, 1994 press release, quoted in
relevant part above, strongly indicates that the Appellees plan
to continue their activities in Puerto Rico, lawful and unlawful.
Appellees contend that there is nothing about the
challenged conduct that by its nature projects into the future
with a threat of repetition. The January 8, 1993 blockade, they
claim, was a "special gathering," an event unlikely to be
repeated. They point out that Treshman left Puerto Rico after
the blockade and has "no immediate plans to return." It is not
the nature of the conduct itself, however, that suggests a threat
-36-
of continuing; it is the fact that the Appellees' regular way of
conducting their affairs involves the illegal acts conducted at
that blockade, and that the Appellees have admitted that they
plan to "continue their efforts." Moreover, Treshman's physical
presence in Puerto Rico is not necessary for Appellees to plan or
threaten future unlawful blockade activities in furtherance of
the alleged conspiracy. We therefore find that sufficient
evidence in the record raises a genuine issue of material fact as
to whether the Appellees' conduct posed a threat of continuing
activity, and that the district court thus erred in granting
summary judgment against the Appellants on this basis.
Accordingly, we remand the Appellants' RICO claims
against Appellees Welch, Treshman, Rescue America, and the PLRT
only, for further proceedings to determine whether Appellants can
prove the elements of their RICO causes of action.
B. The Appellants' Section 1985(3) claims B. The Appellants' Section 1985(3) claims ______________________________________
The Appellants also claim that Appellees' actions
violate the second clause of 42 U.S.C. 1985(3).14 The
____________________
14 Section 1985(3) provides:
If two or more persons . . . conspire
. . . for the purpose of depriving,
either directly or indirectly, any person
or class of persons of the equal
protection of the laws, or of equal
privileges and immunities under the laws;
or for the purpose of preventing or _________________________________________
hindering the constituted authorities . . _____________________________________
. from giving or securing to all persons _______________________________________
. . . the equal protection of the laws . _______________________________________
. . the party so injured or deprived may
have an action for the recovery of
damages . . . against one or more of the
-37-
district court granted summary judgment for the Appellees on this
claim, holding that the Appellants had not adduced any evidence
that Appellees' purpose or intent was to hinder law enforcement
authorities from securing for women their right to seek
abortions. The court reasoned that because the purpose of the
Appellees' activities was "to 'stop the killing of babies,'" or
prevent abortions, "and not ultimately to impede law
enforcement," the Appellants had not met their burden.
We think that the district court's reasoning on this
point misses the trees for the forest. It is akin to saying that
a bank robber lacks mens rea and thus cannot be convicted because
his ultimate objective was to make money, not to commit robbery.
While it is indisputable that the broader objective behind all of
the Appellees' actions is the prevention of abortions, the
properly framed issue is whether, in effectuating that goal,
Appellees purposefully employed tactics designed to prevent the
authorities from securing equal protection of the laws to
Appellants. In order to address this issue, however, we must
first analyze just what constitutes such a violation; put another
way, we must determine what a plaintiff must establish in order
to maintain a claim under 1985(3)'s hindrance clause.
We embark on this analysis with relatively little
guidance. Although the Supreme Court has interpreted the first
____________________
conspirators.
(Emphasis added). Only the second clause, called the "hindrance
clause," is relevant to the instant case.
-38-
clause, called the "deprivation clause," of 1985(3), it has
never construed the hindrance clause, and in fact, has expressly
left this question open. Bray, 113 S. Ct. at 764-66. To further ____
complicate matters, several Justices of the Bray Court offered ____
conflicting views, in dicta, on the interpretation of the
hindrance clause. Nevertheless, the Court's 1985(3)
jurisprudence is instructive here, and is therefore a logical
starting point for our analysis.
The Supreme Court has held that in order to prove a
private conspiracy under the deprivation clause of 1985(3), a ___________
plaintiff must show 1) that some racial, or perhaps otherwise
class-based, invidiously discriminatory animus lay behind the
conspirators' actions, and 2) that the conspiracy is aimed at
interfering with rights that are protected against private, as
well as official, encroachment.15 Bray, 113 S. Ct. at 758 ____
(citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); _______ ____________
Carpenters v. Scott, 463 U.S. 825, 833 (1983)). These __________ _____
requirements are necessary to limit the clause to its intended,
constitutional purpose and prevent its use as a "general federal
tort law." Griffin, 403 U.S. at 102. _______
Applying its deprivation clause precedents to the
context of abortion clinic blockades, the Court held in Bray that ____
the phrase "otherwise class-based, invidiously discriminatory
____________________
15 Thus far the Supreme Court has recognized two such rights for
deprivation clause purposes: the Thirteenth Amendment right to
be free from involuntary servitude, and the right of interstate
travel. Bray, 113 S. Ct. at 764. ____
-39-
animus" could not apply to "women seeking abortions" because they
were not a protected class. Bray, 113 S. Ct. at 759. The Court ____
further held that the record of that case did not indicate that
the protesters were motivated by a purpose directed at women in
general, but rather at stopping abortions. Id. at 759-60. The __
Court did not specifically rule on whether women in general could
ever be a protected class; it did state that the "animus"
requirement could be met not only by "maliciously motivated"
discrimination against women, but by "assertedly benign (though
objectively invidious)" discrimination as well. Id. at 759. The __
Court explained that such assertedly benign discrimination would
demand, however, "at least a purpose that focuses on women by
reason of their sex -- for example (to use an illustration of
assertedly benign discrimination), the purpose of 'saving' women
because they are women from a combative, aggressive profession
such as the practice of law." Id. The Court further held that __
because abortion was a right protected against official, but not
private, encroachment, the Bray plaintiffs could not maintain ____
their cause of action under the deprivation clause. Id. at __
762.16
The Bray majority (consisting of Justices Scalia, ____
White, Kennedy, and Thomas and Chief Justice Rehnquist) refused
to consider any hindrance clause claim, stating that such a claim _________
____________________
16 The Bray majority also rejected the plaintiffs' claim that ____
the protesters' activities deprived them of their right to
interstate travel, holding that impairment of the protected right
must be "a conscious objective" of the conspirators. Id. at 762. __
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was not properly before the Court. Id. at 764-65. In explaining __
its refusal to interpret the hindrance clause, however, the Bray ____
majority stated in dictum that a cause of action under the
hindrance clause "would seem to require the same 'class-based,
invidiously discriminatory animus' that the 'deprivation' clause
requires." Id. at 765. The majority reasoned that the source of __
the animus requirement is the statute's language requiring intent
to deprive of "equal protection" or "equal privileges and
immunities," and that such language appears in the hindrance
clause as well. To hold otherwise, the majority explained, would
require construing the phrase "equal protection" differently in
two clauses of the same statute, contrary to basic principles of
statutory construction. Id. at 765-66 (citing Griffin, 403 U.S. __ _______
at 102). The Bray majority also roundly criticized the dissents' ____
arguments that the deprivation clause's second requirement --
that the right be protected against private, as well as official,
encroachment -- would not necessarily apply to the hindrance
clause as well. Id. at 766-67. __
The four dissenting Justices responded that the plain
language of 1985(3) does not require the same restrictions on a
hindrance clause cause of action. Justice Souter contended that
neither restriction would apply to the hindrance clause. Id. at __
776-77 (Souter, J., dissenting). Justices Stevens and Blackmun
argued that a class-based animus was required under the hindrance
clause, but that it can be inferred if the conspirators' conduct
burdens activities that are performed exclusively by members of a
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protected class, such as women. Id. at 787 (Stevens, J., __
dissenting). Justice O'Connor, joined by Justice Blackmun,
contended that class-based animus is required. She went on to
argue that women are a protected class, and that class-based
discrimination is met whenever the motivation of the conspirators
is directly related to the characteristics of that class, such as
the ability to become pregnant or to terminate pregnancy. Id. at __
801 (O'Connor, J., dissenting). Further, Justice O'Connor
argued, the hindrance clause does not require that the
constitutional right be one protected against private
encroachment. Id. at 803 (O'Connor, J., dissenting). __
Only one court has interpreted the requirements of the
hindrance clause in the rather muddy wake left by Bray. In ____
National Abortions Fed'n v. Operation Rescue, 8 F.3d 680 (9th _________________________ ________________
Cir. 1993), the Ninth Circuit examined the varying opinions of
the Bray justices in light of the language of the statute itself, ____
and decided that the hindrance clause provides a cause of action
only where the purposeful hindering of the police was directed at
a protected class exercising a constitutional right. National ________
Abortions Fed'n, 8 F.3d at 685. It would be considered "directed _______________
at the class" if the activity is one exclusively engaged in by
that class. Id. The court therefore held that "a conspiracy to __
prevent or hinder state law enforcement officers from securing
the constitutional rights to an abortion for women, a class
exclusively seeking to exercise that right, is actionable under
the hindrance clause." Id. at 687. Not surprisingly, the __
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Appellants urge us that National Abortions Fed'n is persuasive ________________________
and applicable here, whereas Appellees contend that the Ninth
Circuit's reasoning is unsound and the facts entirely
distinguishable from those at bar.
Although we find the court's reasoning in National ________
Abortions Fed'n helpful, we cannot follow it blindly. Instead, _______________
we must perform our own analysis, guided by the statute's
language and the cases discussed, to determine 1) whether a claim
under the hindrance clause requires some class-based, invidiously
discriminatory animus; 2) if so, whether women are such a class;
3) if so, whether Appellants have sufficiently shown that
Appellees possess such animus; and 4) whether the hindrance
clause encompasses rights protected against official, but not
private, encroachment.
1. Does the hindrance clause require "animus"? 1. Does the hindrance clause require "animus"? _________________________________________
The source of the "animus" requirement for claims under
the deprivation clause is the statute's language "requiring
intent to deprive of equal protection, or equal privileges and _____ _____
immunities." Griffin, 403 U.S. at 102 (emphasis in original). _______
By requiring such a class-based animus, the Griffin Court was _______
attempting to give full effect to the statute's purpose without
creating a "general federal tort law." Id. at 101-102. In Bray, __ ____
the Court, albeit in dictum, stated clearly that this requirement
should also apply to the hindrance clause, lest the same phrase -
- "equal protection" -- be construed differently in the same
statute.
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We are persuaded by this common sense argument, and
Appellants have offered no alternative contentions for our
consideration on this issue.17 We therefore hold that a
plaintiff under the hindrance clause of 1985(3) must show that
the alleged conspiracy was motivated by some class-based,
invidiously discriminatory animus.
2. Are women a protected class? 2. Are women a protected class? ___________________________
Although it did not expressly answer this question, the
Bray majority did concede that women may be a protected class for ____
1985(3) purposes, and based much of its reasoning on this
possibility. Bray, 113 S. Ct. at 759. Certainly, nothing in the ____
statute or its legislative history precludes such a result. The
legislative history of 1985(3) confirms that even though it was
primarily motivated by the mob violence directed at the newly
emancipated slaves in the Reconstruction era, "its protection
extended to 'all the thirty-eight millions of the citizens of
this nation.'" Bray, 113 S. Ct. at 785 (Stevens, J., dissenting) ____
(quoting Cong. Globe, 42d Cong., 1st Sess., 484 (1871)).
Moreover, it is logical that, at the very least, the classes
protected by 1985(3) must encompass those classifications that
merit heightened scrutiny under Equal Protection Clause analysis,
of which gender is one. See id. at 801 (O'Connor, J., ___ __
dissenting).
Perhaps not surprisingly, then, several other circuits
____________________
17 Appellants merely state that we "need not" rule on whether
such an animus is required, because they have adduced sufficient
evidence that Appellees have demonstrated such animus.
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addressing this question have all concluded that women fall
within the statute's protection. See, e.g., National Org. for ___ ____ __________________
Women v. Operation Rescue, 914 F.2d 582, 585 (4th Cir. 1990); New _____ ________________ ___
York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1359 (2d _______________________________ _____
Cir. 1989), cert. denied, 495 U.S. 947 (1990); Volk v. Coler, 845 _____ ______ ____ _____
F.2d 1422, 1434 (7th Cir. 1988); Novotny v. Great Am. Fed. Sav. & _______ _____________________
Loan Ass'n, 584 F.2d 1235, 1244 (3d Cir. 1978) (en banc), vacated __________
on other grounds, 442 U.S. 366 (1979).
Accordingly, we hold that women are a protected class
falling within the ambit of the protections afforded by
1985(3).
3. Have Appellants shown that Appellees possess an 3. Have Appellants shown that Appellees possess an __________________________________________________
invidiously discriminatory animus against women? invidiously discriminatory animus against women? _______________________________________________
The Appellants contend that they have adduced ample
evidence that the Appellees are motivated in their actions by a
maliciously motivated animus against women in general. They
point out that the protesters who blockade the clinics scream
discriminatory epithets to women attempting to enter, such as
"lesbians, killers . . . lesbians can't have babies." Appellee
Weslin testified as to his belief that many women who are pro-
choice are "lesbians," "drug addicts" who "barbecue babies" in
front of the clinics, "satan worshippers," and "people who
surround baby killers."
Appellants also contend that Welch and Weslin have both
amply demonstrated an assertedly benign but objectively
discriminatory animus towards women. They point to testimony of
both Welch and Weslin that most women are ignorant about
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abortion, and that they believe they must inform women of the
"true" facts about abortion in order to "save" the women from
being "victimized" by friends, family and society. Welch
testified that the women seeking abortions at the clinics are so
"grossly ignorant" that they are not "culpable" for "murdering"
their babies, and that it is his job to "protect" women from
their own decisions to have abortions.
Appellees argue that these remarks are intended to
"empower" women, and that Appellants mischaracterize them in
labelling them as paternalistic and patronizing. Appellees'
strenuous contentions to this effect are wholly conclusory,
however, and therefore cannot serve as the basis for a judgment
as a matter of law. The Appellants have pointed to a great deal
of testimonial evidence that at the very least raises a genuine
dispute as to whether the Appellees possess discriminatory animus
towards women, and this issue is material to the outcome of their
1985(3) claim. We therefore find that the district court erred
in granting summary judgment on these claims, and remand for
further proceedings to determine whether Appellees possess a
discriminatory animus, either overtly malicious or assertedly
benign, against women in general. Unless such animus can be
established, Appellants' hindrance clause claims must be
dismissed.
4. Does the hindrance clause encompasses rights 4. Does the hindrance clause encompasses rights __________________________________________________
protected only against official, but not private, protected only against official, but not private, __________________________________________________
encroachment? encroachment? ____________
Section 1985(3) does not "'provide[] any substantive
-46-
rights itself' to a class conspired against." Carpenters, 463 __________
U.S. at 833 (quoting Great Am. Fed'l Sav. & Loan Ass'n v. ______________________________________
Novotny, 442 U.S. 366, 372 (1979)). The rights, privileges, and _______
immunities that 1985(3) vindicates must therefore be found
elsewhere, presumably in the Constitution. Id. In Carpenters, __ __________
the Court examined 1985(3) in its entirety and concluded that a
conspiracy to infringe First Amendment rights (protected only
against official, but not private, encroachment) "is not a ___
violation of 1985(3) unless it is proved that the State is ______
involved in the conspiracy or that the aim of the conspiracy is __
to influence the activity of the State." Carpenters, 463 U.S. at __________
830 (emphasis added). When the right deprived is one protected
against only official encroachment, a plaintiff must prove that
"the State was somehow involved in or affected by the __ ________ __
conspiracy." Id. at 833 (emphasis added). Claims brought __
specifically under the deprivation clause of 1985(3) -- that ___________
is, alleging that a private conspiracy is aimed at the
deprivation of a constitutional right -- must therefore allege ___________
that the right infringed is one guaranteed against both official
and private encroachment. Id. (emphasis added); Bray, 113 S. Ct. __ ____
at 758 (affirming that claims under the deprivation clause must ___________
allege a right protected against both private and official
encroachment). When a claim is brought under the hindrance _________
clause -- that is, alleging a conspiracy to hinder or impede law
enforcement officials from securing equal protection of the laws
to a class of citizens -- the same constitutional and policy
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concerns are not triggered. The hindrance clause, unlike the
deprivation clause, implicates the ability of the State to ensure _______
and safeguard rights protected against any infringement. When
private individuals conspire for the purpose of arresting or
impeding the State's power to protect or secure equal protection
of the laws to a group of citizens, those conspirators are
supplanting the State's conduct with their own. It seems clear
to us that such a conspiracy is precisely the type that the
Carpenters Court was referring to when it discussed a conspiracy __________
"to influence the activity of the State" and thereby prevent it
from securing equal protection of the laws to its citizens.
Carpenters, 463 U.S. at 830. When the State's conduct is thus __________
arrogated, state action is clearly implicated, and rights
protected only against official infringement are likewise
implicated.
Moreover, because the hindrance clause applies only to
conspiracies to hinder or impede state officials, it does not
raise the same "specter of federalizing general tort laws," one
of the major concerns expressed in Griffin and Carpenters. _______ __________
National Abortions Fed'n, 8 F.3d at 685. The hindrance clause _________________________
provides a cause of action only where the purposeful hindering of
state officials was directed at denying or infringing on the
rights of a group of citizens; it is, therefore, considerably
narrower by its own terms than the deprivation clause, and could
not be used to vindicate ordinary trespasses or torts in federal
court. See id. ___ __
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We therefore hold that claims brought under the
hindrance clause of 1985(3) do not require that the right
allegedly infringed be one guaranteed against private
encroachment, but need only be one guaranteed against official
encroachment.
This is not to say that any action which delays,
impedes or hinders law enforcement officials is actionable under
the hindrance clause. The right infringed as a result of the
conspiracy must be constitutionally protected or guaranteed, and
the purpose, not merely the effect, of the conspiracy, must be to _______ ______
impede state officials in their efforts to secure equal
protection of the laws.
Applying these principles here, we examine the record
to determine if Appellants have shown sufficient evidence to
raise a genuine dispute over whether Appellees intended to hinder
law enforcement officials from securing to women their
constitutionally protected right to abortion. Appellees contend
that there is no evidence that they intended to hinder police
efforts in any way. The testimony of Appellees Welch and Weslin,
however, belies this contention. Welch testified that their
purpose is to close down the clinics and thereby prevent
abortions. Weslin admitted during his testimony that one of the
reasons that the protesters intentionally go limp or flail their
limbs when arrested by the police is to make it more difficult
and time-consuming for the police to arrest them, thereby "buying
time" for the unborn.
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This evidence of the Appellees' statements and tactics,
while not conclusive, is certainly sufficient to raise a genuine
dispute as to whether Appellees' intent was to hinder law
enforcement officials, an issue of fact material to the
Appellants' claims. We therefore hold that summary judgment was
improperly granted, and remand these claims to determine whether
Appellees intended to hinder law enforcement officials from
securing to women their right to obtain abortions.18
IV. CONCLUSION IV. CONCLUSION
For the foregoing reasons, we affirm in part, dismiss _______________ _______
in part, and reverse and remand for proceedings consistent with _______ ___________________________________________________
the instructions stated in this opinion. _______________________________________
____________________
18 Appellees also contend that there is no evidence in the
record that a conspiracy exists among them. This contention
simply has no merit. The evidence indicates that the blockades
are mobilized on a large scale, with many individuals acting in
an tightly organized, disciplined fashion. The overt acts of the
alleged conspiracy include: mobilizing, organizing, and
orienting all the blockades' participants; transporting
participants to the clinics; ordering the "mangled-fetus"
stickers used to deface clinic property; organizing and preparing
banners and placards used to block clinic entrances; drafting and
distributing press releases to recruit participants; arranging
and financing travel to Puerto Rico; and the delay tactics
described above. All of this evidence raises at least a genuine
issue as to whether a conspiracy exists, and we therefore find
that summary judgment was improperly granted.
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Document Info
Docket Number： 94-1699
Filed Date： 4/28/1995
Precedential Status： Precedential
Modified Date： 9/21/2015