PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER
FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR., and
PATRICIA B. WINDLE
Defendants.

CASE NO.: 97-1197-CV-ORL-19B

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

Christopher F. Sapp <signed>
Attorney for Plaintiff
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar No.: 0097823

TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 4

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . 5

TABLE OF CITATIONS

Schenck v. Pro-Choice Network
117 S.Ct. (1997) 137 L Ed 2d 1
hereinafter called SCHENCK. . . . . . . . . . . . . . . . . . . . . . . .2

Madsen v. Women's Health Center, Inc.
114 S.Ct. 2516 (1994)
hereinafter called MADSEN. . . . . . . . . . . . . . . . . . . . . . .2, 4

Lujan v. Defenders of Wildlife
112 S.Ct. 2130 (1992)
hereinafter called LUJAN. . . . . . . . . . . . . . . . . . . . . . . . 3, 4

United States v. Dinwiddie
76 F.3d 913 (8th Cir. 1996)
hereinafter called DINWIDDIE. . . . . . . . . . . . . . . . . . . . . . 4

United States v. Soderna
82 F.3d 1370 (7th Cir. 1996)
hereinafter called SODERNA. . . . . . . . . . . . . . . . . . . . . 2 , 4

18 United States Code §248
hereinafter called FACE. . . . . . . . . . . . . . . . . . . . . . 1, 2, 3, 4

Federal Rules of Civil Procedure, Rule 12(b)
hereinafter called RULE 12(b). . . . . . . . . . . . . . . . . . . . . . . 4

Federal Rules of Civil Procedure, Rule 56
hereinafter called RULE 56. . . . . . . . . . . . . . . . . . . . . . . . . 4

INTRODUCTION

Martyrdom is a tradition that goes back nearly 2,000 years for many of the pro-life community who are counselors at adoption and abortion operations. For them, bearing the cross of persecution is to be accepted as a normal part of their calling.

Assaults on these loving, gentle people have been common-place and their low casualty rate is more a credit to their nimbleness than to the murderous attempts by abortion clinic personnel to run them down with automobiles. Most seasoned pro-life counselors have bags full of war stories that are delivered with a laugh.

But martyrdom is not a concept that is sought by people in their right minds. It is forced upon them. In the pro-life arena, many local courts and police forces have come to view abortion clinics and their employees as sacred cows to be honored and obeyed without regard for basic law. And so, servient law enforcement officers often participate in threatening and intimidating pro-life counselors.

Some of the blame must fall on the pro-life attorneys who have focused their energy on the more notorious cases involving large protests and demonstrations. These cases have received the legal attention that may otherwise have been used for presenting the problems of and threats to these counselors.

This seems to be changing.

Congress was lobbied by the abortion industry for legal protection from threats and violence. It responded with FACE, which is not a pro-life or pro-abortion law but rather an anti-threat and anti-violence enactment. The abortion industry may claim it as their own, but to paraphrase the Court of Appeals in SODERNA, give Congress credit for being even-handed. This is not a pro-abortion law but one which protects pro-life counselors equally well.

Is FACE an impediment to those who would threaten pro-life counselors? Of course it is. That is why defendants are so anxious to re-create the facts of this case. They want their counselors to function safely in the facility but would deny that right to Plaintiff.

Meredith Raney, claim the Defendants, is a rabid protestor with many years of disruptive behavior under his belt. At this location it goes back to 1989, they say. If that were so, why do we not read his name among the list of defendants in the MADSEN case?

With God's help, Plaintiff will sharpen the legal focus on pro-life counselors that we see emerging in SCHENCK. As the Court of Appeals observes in SODERNA, pro-life activity need not be of the violent variety and should be protected equally.

Where persons with pro-life views choose to be counselors, they should no longer be literally fair game for the abortion industry. They now have protection under FACE and need not be martyrs.

ARGUMENT

A few years ago, Manuel Lujan, the Secretary of the Interior, was sued by environmental groups who wanted increased protection for creatures threatened with destruction. LUJAN . The Supreme Court ruled that these plaintiffs did not have standing because they flunked the following test:

1. Plaintiff must have allegedly suffered an injury to himself.

2. The pleadings should allege that the injury was caused by the defendant.

3. It is likely that the injury will be "redressed".

In addition, wrote the Supreme Court, the manner and degree of evidence showing standing vary with the stage of litigation:

At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we "presum(e) that general allegations embrace those specific facts that are necessary to support the claim." National Wildlife Federation, supra, 497 U.S. at 889, 110 S. Ct., at 3189

To pass the LUJAN test, Meredith Raney has properly stated in the Complaint that he was injured. Serious bodily harm is unnecessary. In accord with the language of FACE, intimidation, obstruction or harassment are all that need be claimed.

That the harm was caused by the Defendants is pleaded by the Plaintiff and conceded by the Defendants.

Thirdly, the likelihood of success is indirectly conceded by the Defendants' "barbarians at the gate" appeal to the Court. And the content - neutrality of the Courts insures that Plaintiff will be accorded the same protection under FACE that would be received by a pro-abortion counselor. (SODERNA) and so will be successful in prosecuting this action.

Some of the material filed with the RULE 12 (b) Motion should later be considered on a Motion For Summary Judgment in accord with RULE 56. At such time Plaintiff can demonstrate with additional affidavits and discovery that a FACE "facility" is more than just the building (DINWIDDIE and others); that Plaintiff was not subject to the injunction of MADSEN ; that Plaintiff is not excluded from the protection of FACE because of his pro-life views or gender (SODERNA) and that Plaintiff has many years of service as a reproductive health services counselor at the present location; that the present location is a FACE "facility" even though adoptions are available there, (SODERNA); and that Plaintiff was protected under FACE at the times and places specified in his three counts.

CONCLUSION

Plaintiff, after filing appropriate notice, motion, discovery and supportive affidavits, will later seek a Summary Judgment in this cause showing that the specific facts and law of this case entitle him to a favorable judgment.

For now, the Complaint passes the test set forth in LUJAN for this stage of the proceedings. Therefore the Motion To Dismiss must be denied.

Respectfully submitted,

Christopher F. Sapp <signed>
Attorney for Plaintiff
Post Office Box 1012
Lehigh Acres, Florida 33970
(941) 368-3922
Florida Bar Number: 0097823

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Vincent G. Torpy, Jr., 930 S. Harbor City Blvd., Suite 505, Melbourne, Florida 32901, this 30th day of October, 1997.

Christopher F. Sapp <signed>
Attorney