DEFENDANTS' MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION TO DISMISS AMENDED COUNTERCLAIMS

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

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

DEFENDANTS' MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION TO DISMISS AMENDED COUNTERCLAIMS

Defendants-Counterclaimants, AWCC et al., respectfully submit this memorandum in opposition to the motion of Meredith Raney to dismiss the amended counterclaims.

STATEMENT OF THE CASE

Plaintiff Raney, an anti-abortion organizer active for years in Central Florida, brought this civil action for implicit declaratory relief and damages, under FACE, 18 USC з248. Raney's action focuses solely on three incidents of his own multiple arrests by the City of Melbourne police for violating the "injunctive buffer zone" upheld by the Supreme Court in Madsen v. WHC, 512 U.S. 753 (1994). AWCC is not a police force and did not make these arrests. In essence, Raney seeks belated, collateral federal review under FACE of three concluded state court civil contempt cases, where he did not appeal for clarification, sought no modification of the injunction, and is not a candidate for habeas relief.

AWCC has filed a motion and memorandum for summary Judgment dismissing Raney's complaint. This motion is under advisement, and is potentially dispositive as to Raney's entire affirmative case.

His claims are barred on several grounds,, not all of which needed briefing, e.g.:

(1) Rooker-Feldman doctrine (briefed);
(2) McKusick-Younger abstention (briefed);
(3) inapplicability of FACE statutory language and purpose to Raney, in that he is not a provider of reproductive health care services in a "facility," but rather is the kind of anti-abortion harasser against whom FACE was directed;
(4) failure of Raney to proffer any evidence of lack of probable cause, or improper motive, in the three routine arrests; and
(5) failure to proffer any evidence of any improper agency or other involvement by these defendants in the three arrests, which were entirely the work of the City enforcing a valid injunction, from the Supreme Court no less.

In the interim, AWC filed amended counterclaims against Raney. These are at the early, pre-discovery stage, but have not been fairly described at all in Raney's premature motion to dismiss. At this point, AWCC has been delayed in developing the facts by Raney's own resistance to discovery, namely a three month avoidance of his own deposition, and a key deposition June 17, 1998, when the witness and counsel abruptly got up and left following objections as to relevancy.

AWCC expects and anticipates in due course to establish by proof at trial a massive course of harassing conduct by Raney and others over a period of several years. These will prove up substantial claims and damages for AWCC on the following:

(1) multiple violations by Raney of FACE, 18 USC з248, involving intimidation, obstruction, harassment, and threatening behavior of many kinds;
(2) multiple violations by Raney of FDPPA, 18 USC з2721-2724, the Federal Driver's Privacy Protection Act, including compiling a "blackmail database" of personal information on women without their consent or knowledge;
(3) multiple violations of RICO, 18 USC зз1961-1968, as construed in NOW v. Scheidler, 510 U.S. 249 (1994), recently tried on remand in Chicago, wi th a verdict identifying over 20 acts of Hobbs Act extortion;
(4) multiple violations of the 36 foot "buffer zone" injunction upheld by the Supreme Court in Madsen v. WHC, 512 U.S. 753 (1994); and
(5) numerous violations of the Civil Rights Acts, 42 USC зз1983, 1985, 1988, both with and without the color of law, and within the scope of activities prohibited notwithstanding Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993).

Raney's Motion to Dismiss makes no-mention of the five categories of claims set out above. Raney's Memorandum of Law on the Motion does not exist. At least it was not served on any AWCC counsel. Raney has cited no cases to analyze or distinguish, so the basis for the motion to dismiss remains obscure.

Until discovery has further progressed, nothing is to be gained by simply elaborating upon factual categories that are still being filled in. This is a concise outline, however:

Basically, from 1988 on Meredith Raney and others set out to stop abortions at AWCC, using any and all of the tactics they could get by with. These have included harassment and intimidation of physicians, staff, and patients. The overriding intent was to stop operations at AWCC, using multiple guerilla tactics. These are enumerated in anti-abortion literature, e.g., J SCHEIDLER. CLOSED: 99 WAYS TO STOP ABORTION (1985); ARMY OF GOD HANDBOOK (undated, authorship concealed). This type of activity is nationwide.

The copying of vehicle license plates in order to stalk, follow, threaten, intimidate, and contact innocent women without consent is one of the categories of "99 WAYS," practiced by Raney and others. (This privacy-invading tactic led directly to the shooting death of two individuals involved in a Pensacola clinic.)

The threatening and intimidation of physicians until they quit is the favorite tactic of Raney, even to the point where he traveled to Dayton, Ohio, to picket a residence of one AWCC physician.

The systematic making of false and irrelevant claims to state licensing and regulatory entities is another harassment tactic employed by Raney and others.

Dumpster diving for personal information on AWCC staff such as phone bills, credit cards, and more is a practice at which Raney has been caught. Staff mail has been rerouted with false change of address cards. Raney may be responsible.

Raney and others have shown flashlights in the faces and mirrors of persons driving out of AWCC at night when working late. This dangerous behavior states several possible claims.

The facts and categories of facts are not simple. Extended discovery is needed to expose the full extent of harassment, threats, and intimidation which have taken place over the past ten years. There is no justification for dismissing the amended counterclaims. Indeed, AWCC will gladly amend in full detail after substantial discovery has been completed.

THE AMENDED COUNTERCLAIMS SHOULD BE SUSTAINED AS STATING FACIALLY VALID CAUSES OF ACTION AT THIS STAGE.

The Order of this Court on December 3, 1997, and the October 30, 1997, Memorandum in Opposition to Defendant's Motion to Dismiss, filed by counsel for Raney, provide more authority than is necessary to sustain the amended counterclaims at this stage of pleading.

These counterclaims and the materials on file, including the above representations as to further details and claims, allege far more detail than Raney ever alleged in his complaint, and that was sustained at this same stage.

The counterclaims, affidavits on file (i.e., those of Patricia Baird Windle, and other pleadings, must be interpreted in the light most favorable to AWCC. The allegations, representations, and reasonable inferences therefrom must be considered as true. Raney has tendered no suggestion that they are not. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th Cir. 1994); Jackson v. Okaloosa Co., 21 F.3d 1531, 1534 (11th Cir. 1994).

Mr. Raney, through counsel, seems to agree, as stated in his October 30, 1997, Memorandum in Opposition, pp. 3, 4:

"At the pleading stage, general factual allegations of injury resulting from ... 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.'" 497 U.S. at 889.

"[I]ntimidation, obstruction or harassment are all that need to be claimed."

After long years of harassment, threats, intimidation and danger, the small AWCC clinic is now able to counterclaim against the misguided but vast Army, not of God but of lawless fundamentalist extremists. These counterclaims should be allowed to stand and the motion to dismiss denied.

RESPECTFULLY SUBMITTED:
Roy Lucas, Esq. <signed>
DC Bar #153957
P.O. Box 1433
Melbourne, FL 32902
(407) 339-4600

Susan England, Esq. <signed by RL>
FL Bar #0186018
2805 Lakeview Drive
Fern Park, FL 32730-2007
(407) 339-4600

CERTIFICATE OF SERVICE

This Memorandum of Law in Opposition to Motion to Dismiss Amended Counterclaims has been served this 18th day of June 1998 by First Class Mail dispatched to Christopher F. Sapp, Esq., P.O. Box 1012, Lehigh Acres, FL 33970.

BY: Roy Lucas <signed>
ATTORNEYS FOR DEFENDANTS.