United States District Court, D. Kansas
For United States of America, Plaintiff: Emily A. Gunston, LEAD ATTORNEY, U.S. Department of Justice - Civil Rights Division, Washington, DC; Aaron Fleisher, U.S. Department of Justice - Civil Rights Division - PA Ave., Washington, DC; Barry R. Grissom, United States Attorney's Office, Kansas City, ks.
For Angel Dillard, Defendant: Donald A. McKinney, LEAD ATTORNEY, McKinney Law Firm, Inc., Wichita, KS.
For Mila Means, Deposition Witness, Interested Party: Erin C. Thompson, Lee Thompson, LEAD ATTORNEYS, Thompson Law Firm, LLC, Wichita, KS.
MEMORANDUM AND ORDER
J. THOMAS MARTEN, JUDGE.
On January 19, 2011, Angel Dillard wrote a letter to Dr. Mila Means, who had publicly announced plans to open an abortion services clinic in Wichita, Kansas. Most of the letter centers on arguments from Scripture, appeals to conscience, and the practical disadvantages and difficulties associated with such a clinic. But in the body of the letter, Dillard also wrote that " You will be checking under your car everyday--because maybe today is the day someone places an explosive under it."  The United States instituted this civil action against Dillard alleging a violation of the Freedom of Access to Clinic Entrances Act (FACE), 18 U.S.C. § 248(a)(1).
The court has previously denied Dillard's motion to dismiss, accepting the government's contention that additional discovery could supply additional context establishing that Dillard's letter was a " true threat" which may be sanctioned under FACE, rather than constitutionally protected speech. With the completion of discovery, Dillard has moved for summary judgment, arguing that the communication cannot be deemed a true threat under existing law. The court reviews the evidence and finds that in two essential respects, the government has failed to demonstrate the existence of a true threat, and so grants the motion for summary judgment.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. Bertsch v. Overstock.com, 684 F.3d 1023, 1027 (10th Cir. 2012). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. " In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e))
(emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Findings of Fact
The court made initial findings of fact as to the background of the action in its Order of December 21, 2011. 835 F.Supp.2d at 1126-1128. The facts reflect the initial sending of Dillard's letter, its text, and Dr. Means' reaction to it. Neither party challenges or seeks modification of these findings, and they are adopted herein. Rather, the parties supplement these determinations with the results of the discovery conducted since the court's hearing on the preliminary injunction and the motion to dismiss.
During cross-examination at the preliminary injunction hearing, Dr. Means was asked to agree that Dillard did not write in the letter that she would personally place a bomb under Dr. Means' car. Dr. Means agreed that the writer " carefully didn't say she was going to do anything," and instead spoke to " [w]hat some unknown entities" would do. She was asked if the letter spoke about " a possibility that somebody in the future might put a bomb under your car?" and she agreed, " Right, but that's pretty threatening."
She stated she did not know Dillard's actual intentions from the text of the letter, and stressed the lack of clarity in the letter as to who would perform certain acts:
She did not make a specific reference that, " I am going to shoot you." She made references that she was part of a " they" group and this " we" group, so I don't know what her intentions in her brain were.
She stated that " a particular person wrote this [letter] to me, and there's not a way to know if it's her or her cronies that feel like they would do anything to prevent ... prevent abortions from returning to Wichita, Kansas."
Dr. Means was asked about whether she inferred a risk of violence on the part of Dillard due to the acts of other anti-abortion activists. She responded:
I'm not -- I'm not sure that I know Angel Dillard's propensity but because there was implication of others in two places above thousands of people looking into your background, et cetera, and down here, many others who must take a stand, it's quite possible that she is a spokesperson that would incite others to violence.
Dr. Means was not aware of any ongoing plans by Dillard that would constitute a threat to her, and had no evidence of such a threat at time of the hearing. Dr. Means has explicitly acknowledged that she knows nothing of Dillard's current or ongoing plans, does not know that she has any propensity to violence, and does not know that she is the spokesperson for any group.
The Wichita Police Department was given a copy of the letter on January 19, 2011. The officer receiving the letter noted in his report that some person (the report is illegible) " states that she does perceive the letter to be a threat," but that the officer's inspection found " there was not a direct threat against ... Dr. Means."
The defendant further asserts as a proposed finding of fact that " [t]here is no evidence that the Wichita Police Department took any further action," about the letter other than filing the report. However, at summary judgment, the burden is on
the movant to supply evidence in support of each factual contention. Accordingly, the requested finding, which fails to actually prove no further action was taken, is denied.
After the letter had been forwarded to the FBI, Agent Sean Fitzgerald called Dillard. Dillard told Fitzgerald that " she was not threatening Doctor Means," but only " trying to educate [her] on how her life will change once she begins to provide abortions." Agent Fitzgerald was asked what he would have done, after the telephone call, if he believed that Dillard was " an active threat." He testified there were:
probably a host of things we would have done if we determined Mrs. Dillard to be a threat. There would have had to have been many notifications go up through the Attorney General's Office and DOJ, but I don't know what we would have done, to be honest.
Fitzgerald agreed that the FBI took none of the actions he described.
In addition, the defendant cites Fitzgerald's affirmative response to whether he agreed with court's ruling that " the letter did not portray a true threat." The evidence fails to support the defendant, because it both misstates Fitzgerald's answer, and relies on a question which was itself a misstatement of the court's ruling. The court did not find that the letter could not constitute a true threat, only that the government had not met its heavy burden of showing that it would likely succeed on the merits.
Dillard testified that she initially thought the call from Agent Fitzgerald, which occurred on April 1, 2011, was an April Fools Day joke. According to Dillard, after Fitzgerald told her about the contents of the letter, she told him that it was " a little vague," and Fitzgerald (allegedly) told her, " It really is no big deal, there isn't anything criminal, all they're wanting is a C.Y.A." She further testified Fitzgerald
said the D.O.J. was pursuing this, that he had recommended that they not do it because it was counterproductive to what they were doing in Wichita and that it would ruin the relationship that they had with the community and would be counterproductive to their mission.
He said, " There was nothing there, it's not a threat. The D.O.J. is wanting to pursue it and I recommended they not do that, but they're doing it anyway."
The defendant's husband, Dr. Robert Dillard, testified similarly as to the April 1 call by Agent Fitzgerald. According to Dr. Dillard:
I can't remember the exact phrase that he used, but I think it was something to the effect of that no derogatory findings were found on his investigation and that he had recommended against the suit itself but the Department of Justice was deciding to continue with that and so he had been asked to contact us.
He told us that he personally and the F.B.I. in general were frustrated by the suit because they felt -- and he told me that he had told the representative from the D.O.J. -- that they felt this was undermining the trust and the relationships that they were trying to develop with people who were not extremists but were still pro-life.
Agent Fitzgerald was asked about this conversation, and he did not directly deny making such comments. He testified that
he was " trying to build rapport [with the Dillards] and I probably did play into that a little bit more."
Dillard also cites Agent Fitzgerald's testimony about a prior F.B.I. threat assessment investigation two years earlier, which began after Dillard wrote to Scott Roder, who was imprisoned for the murder of Dr. George Tiller. The 2009 assessment reported:
Investigation to date has revealed no indication that Dillard is involved in violations of criminal law.... She has cooperated fully with the assessment, she has continued communication with Roeder with full knowledge that his communications are monitored, and she has spoken ...