objections to the 10/19/11 recommendation
of magistrate judge michael hegarty
that motion to intervene from actor in concert
and unidentified protestor terry sullivan
be denied by district judge philip brimmer
In his recommendation, the Magistrate discusses the proper application of Federal Rule of Civil Procedure 24(a) Intervention as a Matter of Right and 24(b) Intervention by Permission as interpreted by the Tenth Circuit.
Page 4 The Tenth Circuit summarizes the requirements for intervention as a matter of right as: (1) the application is timely; (2) the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) the applicant's interest may as a practical matter be impaired or impeded by disposition of the action; and (4) applicant's interest is not adequately represented by existing parties. On page 5 the Magistrate states that 1. Timeliness is not an issue. Leaving (2) (3) and (4) to be discussed.
On page 5 the Magistrate quotes the Tenth Circuit guide lines in respect to 2. At minimum, the applicant must have an interest that could be adversely affected by the litigation . . . although the intervenor cannot rely on an interest that is wholly remote and speculative, the intervention may be based on an interest that is contingent upon the outcome of the litigation. [ my emphasis ]
On pages 5 and 6, the Magistrate argues that I and other actors in concert do not have a sufficient interest in this case-- any stated interest in this case is either nonexistent or merely speculative; for
the movants to be considered as "acting in concert" with the Defendants
(as defined by the request for injunctive relief), they would need to
be charged with or found in violation of the FACE Act. Movants are not defendants in this case and there is no indication of any allegations by the plaintiff or others that they have committed FACE violations. [ my emphasis ]
On page 6, in regard to 3. Danger that Interest may be Impaired or Impeded, the Magistrate quotes a 10th Circuit 2001 decision: To
satisfy the impairment element of the intervention test, a would-be
intervenor must show only that impairment of its substantial legal
interest is possible if intervention is denied. this burden is minimal. [ my emphasis ] Wildearth Guardians, 573 F.3d at 995 (quoting Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1253 (10th Cir. 2001)). But, he argues, we don't meet this minimalburden because neither movant has been alleged to have committed FACE violations.
On page 8, in regard to 24 B. Permissive Intervention 2. Common Question of Law or Fact he repeats this argument: Contrary
to their assertions, they are not "acting in concert" with the
Defendants, as defined by the Plaintiff's request for injunctive relief,
unless they have been charged with or found in violation of the FACE Act. [ my emphasis ]
So he argues that the motions to intervene filed by Ernie Gero and me should be denied because we have not been charged with violating FACE.
That does not accurately describe what is found in the June 1st Complaint and the June 9th Memorandum filed by the Justice Department.
In a de facto way, we are charged with violating FACE. Without naming us and giving us the chance to defend ourselves, they are charging us with violating FACE. That is the assumption behind their request for an injunction, which is obviously aimed at all of us indiscriminately.
And the extremely loose standard of violating FACE
which the Justice Department is trying to apply to Ken and Jo Scott
would apply equally to everyone who comes out there to picket. The injunction they request is a legal cluster bomb aimed at everyone who sidewalk counsels at 38th and Pontiac.
In their list of 10 incidents, in the June 1st Complaint, in which Ken Scott has allegedly violated FACE, the Justice Department lawyers keep noting the presence of other unidentified protestors who have also violated FACE. These not-yet-identified protestors, already captured on the surveillance video in the possession of the Justice Department, are already charged with [ being ] in violation of the FACE Act. What does unidentified mean ? We know who they are, Planned Parenthood knows who they are and the Justice Department already knows who they are. They are not-yet-identified only because the Justice Department lawyers have not yet identified them. Or, more likely, they have not yet decided to share that information with the rest of us. They are in effect already identified because they appear on surveillance videos, submitted to the Court as evidence, which are identified by the date and the time.
The Justice Department Complaint in effect contains a sealed indictment of those they describe as unidentified protestors acting in concert to violate face. Which they may unseal whenever they wish. We must wait upon their legal pleasure as to when they want to do it. Be patient. Don't be anxious. We'll get around to you in our own good time. We have face charges enough for everyone.
unidentified protestors acting in concert to violate FACE
Obama Justice Department Complaint filed June 1st 2011 page 3: 15. Defendant
Kenneth Scott walks into or stands in the PPRM driveway in order to
injure, intimidate, or interfere with persons seeking or providing
services from entering or exiting the PPRM parking lot.
16. At times, other protestors acting in concert with the defendants, [ my emphasis ] also
walk into or stand in the PPRM driveway or the street directly in front
of the driveway as vehicles approach to enter or exit the facility.
17. drivers must brake, stop, and/or alter their direction in order to avoid hitting Defendant, other protestors . . . [ my emphasis ]
unidentified protestors are described as acting in concert with Ken Scott and violating face in the episodes of 8-15-09 9:33 a.m. 23. 24. 26. 27. 8-15-09 9:36 a.m. 28. 29. 33. 35. 36. 1-16-10 # 54.
So these unidentified protestors have already been charged with violating FACE by the Justice Department lawyers. They are already described as violating FACE in a surveillance video identified by date and time which they got from Planned Parenthood.
they request a preliminary injunction with blank spaces they could fill
by looking at the surveillance tapes in consultation with Planned
Parenthood. So it will be entirely up to their discretion as to when these unidentified protestors are identified and charged with violating FACE. Will they not be derelict in their duty if, for some inscrutable reason of their own, they neglect to charge these unidentified protestors ? Should we be comfortable with that, even though we are now at the mercy of the Obama Justice Department ? I don't find that very comfortable.
These not-yet-identifiedprotestors have already been charged with violating FACE in the original complaint. There is nothing speculative about it. All they have to do, once they get their injunction, is to add the names to the surveillance video already in their possession. Planned Parenthood has the list of names ready to go. They are eager to help.
Unidentified Protestors acting in concert are already charged with violating FACE. Am I one of them ? I don't know because I have not seen these tapes. Are these the only tapes they intend to use ? There
is no reason to assume that they will confine themselves to the 10
incidents already cited in the bill of FACE violations alleged against
Ken Scott and other unidentified protestors.
I know I show up on Rocky Mountain Planned Parenthood's surveillance videos. They
have miles and miles of surveillance videos and they are eager to share
them with the Denver Police or the Justice Department or anyone else
who will do something with them.
a pass from the Justice Department
May I trust their intentions in respect to me and the other actors in concert ? Even though they allege that we have violated FACE, they are going to give us a pass ? Why then are they asking for an injunction which would force us to stay 25 feet from the driveway and stop using the sidewalk ? Is there a rider in there some where which says: None of this applies to Terry Sullivan. Even if he shows up on the tapes, acting in concert, and violating FACE, we are going to give him a pass ? I have not come across it. And
I don't want to be given a pass by the Obama Justice Department for
exercising my first amendment rights as I have for the past 20 years,
despite regular harassment from Denver police. They can keep their pass.
Since the charges against Ken and Jo Scott are being used to justify the request for an injunction to keep unidentified protestors acting in concert
with them 25 feet away from the driveway--which will shut down
leafletting--and 25 feet away from the property line--which will stop us
from using the public sidewalk--it is apparent that my interest--my first amendment rights--is in fact contingent upon the outcome of the litigation. This is not remote and speculative, it is the looming reality of the injunction they have requested.
The Planned Parenthood abortuary occupies the entire block between Pontiac and Poplar Streets and 38th and 39th Avenues. It is surrounded by a 7 foot fence along the property line. The
sidewalk outside the fence--one foot from the property line--is a
public sidewalk which has been used as a public forum for anti abortion
protests since they moved there in 2008. There is
no sidewalk across the street on the north and west sides where
abortion protestors would be forced to move if they were forced to stay 25 feet from the property line. Being forced to move across the street would effectively cripple our use of the First Amendment out there. I
don't doubt for a minute that this result is exactly what Planned
Parenthood and the Justice Department, working in tandem, are trying to
achieve. Planned Parenthood has been trying to do that for years, one way and another. And the Obama Justice Department has obviously adopted the NARAL / Planned Parenthood agenda as its own.
The fact that, so far, the Justice Department lawyers have named only the Scotts, proves nothing. They obviously believe that our entire picket line is in violation of FACE. What
else is the logic of their request for an injunction that would move
all of us out of the driveway and across the street from the public
sidewalk ? Once they have their injunction, they can name the rest of us at their leisure.
Aside from the surveillance tapes of the driveway, Planned Parenthood has surveillance tapes of the entire front sidewalk. Where, by the sleazy standard invoked in the Justice Department Complaint of June 1st 2011 against Ken and Jo Scott, anything can be seen as a violation of FACE. Their allegations in respect to FACE violations by Ken and Jo Scott are so nebulous that they would apply to everyone out there. We also leaflet in the driveway. We also try to talk to abortion customers. That violates FACE.
leafletting = impeding = obstructing
Ken Scott leaflets in the driveway, together with other unidentified protestors acting in concert. The Justice Department complaint neglects to mention that they are leafletting. And neglects to mention that this is the one most effective place to leaflet. And neglects to mention that leafletting is a basic First Amendment Right referenced by a ton of case law going back 70 years or so. Nine out of 10 Planned Parenthood abortion customers pass through that driveway. If you can't leaflet there, you can't leaflet.
Their Complaint shows that the Justice Department lawyers are determined to add impeding to FACE. They want to graft this undefined synonym into FACE and use it to mean the same as obstructing and blocking. They persistently use impeding in their description of 10 incidents in which Ken Scott, and other unidentified protestors, have allegedly violated FACE. Even though the term is not found in FACE--especially because it isn't--they mean to use it as a fuzzy synonym for the obstruct which is found in FACE.
In items numbered 21. 22. 42. 61. 67. 68. of the June 1st 2011 Complaint, they use impeding to mean the same as obstructing. That gives FACE the more elastic boundaries their Complaint and Memorandum require. By leafletting and talking Ken Scott and other unidentified protestors are impeding "patients" seeking [ anti ] reproductive services--abortion customers. Which means that they are obstructing them and thereby violating FACE.
you pass out leaflets and try to talk to abortion customers in the
driveway of Planned Parenthood--the one most effective place to do
it--you are impeding / obstructing just as if you had sat down in the driveway and refused to move. A wonderfully elastic and all purpose standard which the Justice Department intends to apply to all of us.
On page 10 of the June 1st 2011 Complaint, items 74. 75. 76. Jo Scott is charged with violating FACE in the incident in which she walked along behind Laura Brown and tried to talk to her. The rest of us walk and talk also. Even though the jury was convinced by the surveillance tape and the blow up photographs that Jonevertouchedher, they convicted her of detaining hindering impeding--the fuzzy substitute synonyms for block and obstruct found in CRS 18-9-122 (2).
was what lawyer Terry O'Malley's motion predicted when he challenged
this never before challenged section of the so-called buffer law passed in 1993 by Planned Parenthood and NARAL. [ The President of NARAL posed for pictures with the Governor when he signed it into law. ] It is so nebulous that it can mean anything. Which is just what they want. This law does in fact target Sidewalk Counsellors, as is well argued in the dissent by three Supreme Court Justices in the Hill case and in the 2003 Harvard law review article by Alan Chen.
The Justice Department lawyers have incorporated the Laura Brown case into their complaint by making it a violation of FACE. They want to adopt the attack on first amendment rights found in CRS 18-9-22 into FACE and then apply it to all of us. The reason they have to try and do this is that Planned Parenthood shot itself in the foot when they designed their new surgical clinic in such a way that the entrance door is more than 100 feet from the sidewalk. Which voids section 3 of CRS 18-9-122. So
the Laura Brown case and this Justice Department lawsuit represent a
determined effort to bend section 2 into a weapon they can use against
sidewalk counsellors, in the same way they used section 3.
They apply the same fuzzy standard to the unidentified protestors acting in concert that they apply to Ken and Jo Scott. Since leafletting, walking and talking violate FACE, according to their Complaint, all of us out there are violating FACE. It is no virtue of this Complaint that it attacks our First Amendment rights without naming us and giving us the chance to respond. This lawsuit is in fact a sneak attack on the First Amendment rights of everyone out there.
guilty of talking
Aside from impeding, just speaking out violates the elastic version of FACE invoked by the Justice Department. The June 1st Complaint, item 19. says that As PPRM staff and clients enter and leave the facility, Defendants regularly yell anti-abortion rhetoric at them. Examples
include "Baby-killer," "Murderer," "Abortionist," and statements that
staff and clients will go to hell and are sinners. Is it a violation of FACE to yell anti-abortion rhetoric ? If not, why is it included in this list of alleged FACE violations ?
Why did the Justice Department lawyers make it part of the deal they offered to Ken Scott that he would shut up ? He should stop preaching and stay out of the driveway. That is, he should surrender his first amendment rights to talk to abortion customers and leaflet. And then the other unidentified protestors acting in concert will be called upon to surrender their first amendment rights. What else is the purpose of this lawsuit ?
Item number 74. of the Complaint contains a similar allegation against Jo Scott-- followed
alongside her telling her to not go into PPRM and telling her that if
she went into PPRM she would be "participating in murder." That constitutes harassment in Denver County Court. Did it also violate FACE ? Apparently it did. The Justice Department lawyers have incorporated the Laura Brown case into their Complaint as a violation of FACE.
The message that these allegations send to the rest of us unidentified protestors acting in concert is that, if I walk along with someone approaching Planned Parenthood and try to talk to that person, I have violated FACE. We are all guilty of impeding-detaining-hindering. Meaning obstruction. We violate FACE when we yell anti-abortion rhetoric or even quietly state that abortion is "participating in murder." I
don't think I am being paranoid in seeing these FACE allegations
against Ken and Jo Scott as implicitly targeting the First Amendment
Rights of all of us who come out there. As Jules Fiefer said: Sometimes it isn't paranoid to be paranoid. Just because you are paranoid, it doesn't mean they aren't out to get you ! They are out to get us !
Even if they had not charged unidentified protestors acting in concert with violating FACE--they did--the
fact that they charged Ken and Jo Scott with violating FACE for doing
what we all do out there is enough to raise a First Amendment alarm.
We All Impede
elastic standard of FACE violations used by the Justice Department
provides no assurance at all that the rest of us will escape the charge. Like Ken Scott, I have tried to leaflet abortion customers in the driveway. Like Jo Scott, I have talked to men and women coming down the sidewalk towards the entrance. Which means I have impeded. Equals obstruct. Equals a violation of FACE. Clearly
the Justice Department lawyers have adopted the attitude of Planned
Parenthood that everything we do out there by way of interfering with patients seeking reproductive services--killing their babies--is illegal and should be enjoined.
Further, the Justice Department lawyers are not just asking for an injunction to stop Ken and Jo Scott and unidentified protestors acting in concert from violating FACE, even by their own hazy and expanded standard. They go on to request an injunction to keep us 25 feet from the driveway and the property line. That is, they want to shut down leafletting and use of the sidewalk, quite aside from any allegations of violating FACE. The bottom line of their injunction is that standing on the public sidewalk in front of Planned Parenthood will violate it. They
neglect to point out that the sidewalk is one foot from the property
line and would therefore be off limits under the injunction they
What else is this but an all out attack upon our pro life picket line ? Any sensible person can see it: The Obama Justice Department is trying to shut down our Pro Life picket line.
They prefer to avoid naming individuals because that gives those individuals the rights of defendants. Instead they wish to shut down the entire picket line using these blank allegations. They wish to impose a prior restraint
on everyone out there via a sweeping injunction which goes far beyond
asking that two specifically named individuals be enjoined to not
It is clear enough that unidentified protestors and those acting in concert designate the dozen or so people who show up on the Planned Parenthood surveillance tapes picketing Planned Parenthood. There is nothing speculative about it. There is nothing future about it. If
you show up on the Planned Parenthood surveillance tapes in 2009, 2010
or 2011, you are now in the cross hairs of the Justice Department.
The fact that they have not yet named us provides no assurance whatever. They are obviously seeking an injunction broad enough to target the entire picket line. What else can it mean when they add 25 feet from the driveway and 25 feet from the property line to their request for an injunction against violating FACE ?
It is obvious from their arguments that everything we do out there is regarded as a violation of FACE. Leafletting in the driveway. Walking along behind abortion customers and trying to talk to them. They
won't spell out the first amendment implications of the injunction they
have requested because they are trying to sneak it through under the
radar which is supposed to detect an attack on the First Amendment. That is just what it is.
prior restraint: standing in the weeds
The request for an injunction is not limited to violations of Face. Rather they use the vague allegation of violations of FACE to demand that Ken Scott and other unidentified protestors and those acting in concert all
be required to stop leafletting at the driveway and stand in the weeds
across from the public sidewalk in front of Planned Parenthood.
even if the Justice Department lawyers issue me a certificate stating
that I am not charged with violating FACE there is no guarantee that I
will not be subject to these further prior restraint prohibitions-- we
aren't saying that you have violated FACE, but just to make sure you
never do, we want all of you to stay 25 feet from the driveway and stay
across the street from the public sidewalk. There is a conjunction which adds these demands to the demand that Ken Scott and other unidentified protestors acting in concert--meaning not yet identified protestors--stop violating FACE:
this Court should preliminarily enjoin the Defendant, and others acting in concert with him, from continuing to engage in activities that violate FACE,
and from coming within 25 feet of the driveway and property of PPRM.
[ my emphasis ] [ page 2 of the Memorandum ]
Page 14 of the June 1st 2011 Complaint asks for a Permanent Injunction against Defendants
. . . and others acting in concert or participation with them, from
committing any of the following acts or aiding, abetting, directing, or
inciting others to: a. violate any provision of FACE . . . b. Come within 25 feet of PPRM property, including the PPRM driveway . . .
Note the b. which has been added to the a. They not only want all of us actors in concert to stop violating FACE--which clearly indicates that we have been violating FACE, albeit anonymously, and while waiting patiently to be identified--but,
whether we have violated FACE or not, they want us to quit leafletting
at the driveway and they want us to stop using the public sidewalk.
I read this, and I read purty gud, being charged with a violation of
FACE is not a condition for being subjected to these restrictions. Or,
rather, since leafletting and talking are classified as violations of
FACE by the Obama Justice Department, everyone who pickets at Rocky
Mountain Planned Parenthood is in violation of FACE.
They have yet to explain or justify these 25 feet from the driveway and property line provisions in connection with allegations of FACE violations. Are they really so oblivious of the fact that this would shut down first amendment activities at 38th and Pontiac ? Gosh, don't they teach about the first amendment now in law school ? Topics like leafletting and sidewalk as a public forum ?
The FACE Act as used in this lawsuit by the Justice Department lawyers, has become an all purpose weapon against a pro life picket line. The case against Ken and Jo Scott is being used as an entering wedge to attack the whole picket line. The Obama Justice Department has been in close consultation with Planned Parenthood to develop a common agenda. Which is the same agenda we have had to confront for the past 20 years.
Do I have an interest in this lawsuit ? Yes I do. It
is an attack upon the picket line which has taken up a large part of my
life since August of 1989 when Al Garcia and I anchored a 5 day a week
sidewalk counselling and pro life witness at the Rocky Mountain Planned
abortuary--excuse me, of course I mean the health care facility--at 20th and Vine.
In fact, I have a life interest in our pro life witness--a life and death interest. What we do out there is a matter of life and death. Quite aside from my rights as a protestor, there is the little matter of babies being put in the trash and women having a life time of regret. The
baby's right to life and her mother's right to escape from 20 years of
nightmares are in fact intertwined with our right to carry on Sidewalk
Counselling under the protection of basic free speech rights supposedly
guaranteed by the First Amendment of the U.S. Constitution and the
Second Amendment of the Colorado Constitution. Which the FACE law and CRS 18-9-122 have seriously undermined.
Although the Denver police and judicial establishment had already seriously undermined our free speech rights, under color of the law, before these two laws were passed in 1993. Operating
in the same spirit which inspired the Jackson Mississippi police when I
was arrested as a Freedom Rider and charged with Breach of the Peace just for walking into the whites only waiting room at the bus station in a racially mixed group.
rescuing babies from the trash
Our 5 day a week witness began to save babies in earnest. Two a week on the average. We have the pictures to prove it. I have a picture of me and Jennifer who came by to show us her baby. I attended a baptism at a Russian Orthodox Church of a baby we saved. On December 26th 1999, three babies were born on the same day to three women we had Sidewalk Counselled at 20th and Vine. Have you ever saved a life ? Or two lives at once ? There is something rather exhilarating about it. It can easily become an addiction.
At 38th and Pontiac we rescue about one baby per week on the average. Their business is down by half from what it used to be and our rescues are down by half from what they used to be. I would estimate that we have rescued at least 1500 babies from the trash bucket at Planned Parenthood since 1989. And Planned Parenthood doesn't like it. And they have done everything they could over the years to shut us down, relying upon their friends in high places. Congresswomen Pat Schroeder brought them doughnuts, in front of the media of course, during one rescue. And did a lot more than that behind the scenes. We are doing our best to shut them down, relying upon our highly placed friend. They kill babies and we rescue them. Not a minor difference.
under color of the law
Our pro life picket line came under relentless attack from the pro Planned Parenthood City and County of Denver establishment. Between 1989 and 1997 we had more than 100 arrests for disturbing the peace by calling out to customers and air trespass and all sorts of other legal junk, including pure frame ups. Al Garcia was arrested half a dozen times and so was I. I spent 45 days in the Denver County Jail in the spring of 1990. Ken Scott and Al Garcia competed for most arrests. We
weren't just ticketed, we were routinely hauled off to jail in hand
cuffs and forced to post bond as part of a special policy of police
harassment peculiar to pro life activists.
And we learned to defend ourselves either pro se or with the help of volunteer lawyers the best we could. Bishop Robert Zeiger won seven free speech acquittals. Mike Martin won eight acquittals or reversals and we developed a cumulative free speech brief which we still recycle. Al Garcia was the first to win an appeal to the District Court and he did it himself. And more people joined us. Ernie Gero and Mike Winter and Ed and Ruth Boulee have also been out there for 20 years.
Jo Scott joined us in 1997 and she had done sidewalk counselling in California for years before that. She
is the most effective Sidewalk Counsellor we have had out there and
Planned Parenthood has recognized that by making her their number one
We established our first amendment rights the hard way by standing up to these attacks. Our
bottom line is that we have saved hundreds of babies from the trash and
hundreds of mothers from feeling like trash by a dedicated use of first amendment rights = nonviolent direct action = bearing christian witness to the truth about abortion. cf. Proverbs 31.8-9 (nKJ) Open your mouth for the speechless, In the cause of all who are appointed to die. Open your mouth, judge righteously, and plead the cause of the poor and needy. cf. John 18.37 For this cause came I into the world, that I should bear witness unto the truth. cf. Matthew 25.40 Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.
back stairs collusion
was all sorts of back stairs collusion between Planned Parenthood and
NARAL and the Denver Police and the Mayor's office and the City
Attorney's office. We belatedly found out about some of it via discovery in the Section 1983 lawsuit we filed against Planned Parenthood and the City of Denver in 1994. We learned about the Neighbors Meetings,
sponsored by Planned Parenthood and NARAL, and attended by police
captains and representatives of the Mayor's office and the City
Attorney's office where neighbors--supportors of Planned Parenthood--were recruited and encouraged to make complaints against us.
It is a joke that FACE was ever necessary to curb the excesses of pro life activists. Who have been constantly monitored and harassed by a city government in bondage to NARAL and Planned Parenthood. It
was necessary to give the pro abortion Clinton Justice Department a
second shot at pro life activists who were already being targeted by big
city governments also dominated by the politics of NARAL and Planned
Like other big cities, the political and legal establishment here is subservient to NARAL and Planned Parenthood. When
Governor Robert Casey of Pennsylvania was denied the opportunity to
address the 1996 Democratic National Convention, he observed that the Democratic National Committee has become a wholly owned subsidiary of NARAL. It also dominates city governments controlled by the pro abortion wing of the Democratic Party. You can see how that played out here in Denver in the long running attack on our pro life picket line. And now the Obama Justice Department has stepped in to renew the attack. [ Not that the Republican Party is any better. They only pretend to be pro life. Meaning that they are willing to use the abortion issue in their pursuit of political power. ]
We have been out there for years saving babies from death by using our First Amendment rights to picket and leaflet. While under constant attack by local police and without any support from the nominally pro life pseudo Christians.
enter the feds
The Clinton Justice Department under Janet Reno organized a nation wide federal, state and local task force to come after terrorists like us. In 1991 the City of Denver passed a buffer law--an 8 foot ordinance which was tailor made to target our sidewalk counsellors in front of Planned Parenthood. It
was modeled upon the earlier law passed in Boulder by NARAL when Leslie
Durgin was the Mayor of Boulder and also proprietor of the Boulder Valley [ aborted ] Women's Clinic. She
is now a vice president of Rocky Mountain Planned Parenthood and set up
Jo Scott's first arrest under the buffer law using Planned Parenthood
staff posing as customers. In 1993 the State of
Colorado passed CRS 18-9-122, their version of the buffer law designed
to shut down the first amendment rights of sidewalk counsellors. Jo Scott now has the distinction of being the only person convicted under both section 2 and section 3 of this law.
After Cliff Powell and David Lane were clubbed by a Planned Parenthood Security consultant in 1994, we filed a Section 1983 under color of the law lawsuit against Planned Parenthood and the City of Denver. The
charge against the Planned Parenthood Security consultant was dropped
by District Attorney Bill Ritter, on his way to becoming governor in a
party dominated by NARAL.
No one was to blame he decided. Boys will be boys. It was the legal equivalent of looking at a body with 5 bullet holes and ruling it a suicide. Ritter is fairly representative of the sort of pro life Christian we have had to cope with through the years. His career comes first.
We didn't win the Section 1983 lawsuit,
but we came close enough that the Denver Police and the City Attorney
halfway backed off from a policy of persecution which many officers had
participated in reluctantly. They were well aware that they were being used as errand boys for Planned Parenthood's baby killing agenda.
We have established our First Amendment Rights to rescue children from the trash the hard way. And don't intend to surrender them. I
don't expect much help from any court but I have reason to believe that
God is on the side of those who rescue babies from the trash bucket. We also have a friend in a high place.
The FACE ACT
1993, the Clinton Administration pushed through the FACE bill, which
gave the federal government a legal weapon to target pro life activists. It is a clumsy weapon but the Obama Justice Department is doing its best to make use of it. The
obvious advantage of Civil FACE is that the Justice Department lawyers
can step in and charge one of us with a trivial complaint which the
police would quite sensibly ignore, even if the driver involved bothered
to make it: I was delayed 30 seconds because of this fellow walking across the driveway ! They
are obviously stretching FACE to undermine first amendment rights, but
they have only developed the implicit legal doctrine of FACE, which was designed to be used that way, contra the disclaimer written into the law.
The specious justification for FACE was that there was a place or two in the whole country where rescuers were not being hammered as hard as they were in the big cities. The City of Denver needed no help from the federal government to attack pro life activists. Denver
has been one of those cities, dominated by the pro abortion wing of the
Democratic Party, where the attack upon pro life activists has been
most sustained and most severe. Here in Denver pain compliance was used on rescuers to force them to walk. Twisting thumbs and arms. A number of rescuers suffered injuries which still bothered them a year later. The hearings chaired by Senator William Armstrong documented the fact that entirely peaceful psalm-singing rescuers were violently handled by police in a number of cities.
The Rescue Movement of 1988-1991 exhibited the best nonviolent discipline the country has ever seen. Sixty thousand people participating without one assault charge. The nonviolent discipline was as good as or even better than the early civil rights movement. And had no similarity to contemporary demonstrations which routinely include vandalism and throwing things at the police.
The pain compliance used by the police was seconded by the pro abort court house of the City and County of Denver. Vern and Susan Kirby were given years in jail and thousands of dollars in fines for two rescues. They
made the mistake of accepting a plea bargain in the first one--a $ 25
fine--and that set up the extreme sentence for the second rescue. The sentence was finally modified after the Denver Catholic Register did a story on the Kirbys. Before that, the media blacked them out. A
Rocky Mountain News reporter who finally did a sympathetic story on the
rescue trials found her story put back in the want ads at the back of
FACE did not shut down the so-called Rescue Movement as many people mistakenly believe. The Rescue Movement was as dead as vaudeville before ever FACE was passed. It died out because nominally pro life secular Christians really did not believe in do-it-yourself Christianity--aka nonviolent direct action. Sixty thousand of them rescued once. 6000 rescued twice. 600 rescued three times. 60 rescued four times. About 6 people were still out there rescuing--sitting in and getting arrested--when FACE was passed. For most of them, one rescue medal was enough. After that they voted for Bush. Let him take care of it.
The Rescue Movement died out because most of the nominally pro life Christians participating in it did not really believe in relying upon spiritual warfare to stop abortion. That is why they rescued once and quit. They did not believe that Christians must bear personal witness and must refuse to conform to the world which shrugs off the killing of babies by abortion, which calls it health care. Especially if they had to do it and had to risk jail in order to do it.
They believed that abortion could be stopped through conventional politics and the law. The lawyers will find some new legal stratagem to reverse Roe versus Wade. They still cling to that illusion because it is the necessary foundation of their own comfortable life style. They can go along with the crowd. They don't have to confront the crowd with personal witness to the truth about abortion. They can wait patiently for the pro life politicians and the lawyers to do the job.
When they finally lose that illusion, it is predictable that they will accept violence as the only way to stop abortion. Violence by someone else anyway, while they support the troops. They
do not believe in nonviolent direct action or in using your first
amendment rights out in front of the abortuary to save babies. But they do believe in war, so long as they don't have to fight it.
Not that there is likely to be a war over abortion. Not that many care enough to fight about someone else's baby being killed. But
the increasingly rancorous divisions in American society have the
potential for a violent conflict which will include abortion as one of
its moral justifications. The American Civil War wasn't really about slavery. It was about power and wealth, like all wars. But the issue of slavery provided that moral tinge which wars require.
pray and vote: the people are with us
Most nominally pro life secular Christians have never believed in getting out there with a picket sign. They believe in leaving it up to God and the government. Their call is to: 1. pray 2. vote 3. send $ 5 to a pro life lobby in Washington. They fool themselves that some day, somehow Roe v. Wade will be over turned by some legal sleight of hand.
They fool themselves that The People will rise up and stop abortion via a one fingered anonymous gesture in the safety of the voting closet. They still assume that the people are with us and that the police will protect us. They are not ready to recognize that the people are not with us and that the police now Serve and Protect Planned Parenthood.
They cling to the illusion that abortion can be stopped within the comfortable limits of American law and politics. Some day a pro life president will appoint Supreme Court Justices who will overturn Roe v. Wade. Sooner or later, they will be forced to abandon that illusion. Any of them with sense already have.
The rest won't wake up until they discover that their grandchildren are headed for the trash bucket at the Planned Parenthood abortuary. And that there is no longer any one out there trying to prevent it. They may be savedbut their families are headed for the trash.
do not believe in nonviolent direct action and when they are forced to
abandon the illusion that praying and voting will take care of it, they
will turn to their bedrock faith that a good man with a gun answereth to evil ( John 30-30, Luke 45-70, Matthew 12 gauge ) as seen on TV every night of the week.
I think there is a real possibility of another civil war in America. Not over abortion really, but the usual contest for power and money, will invoke the issue of abortion as its moral justification just as slavery was invoked to justify the last one.
the rear guard action
direct action--Sidewalk Counselling--picketing and leafletting--has
turned out to be the only remedy we have left for stopping abortion. Even though the few of us doing Sidewalk Counselling
are a small and unpopular minority, we are at least a rear guard in the
rout of the mainstream pro life movement, which was built upon secular
Christian illusions. The doctrine that abortion
can some how, some day, be stopped via conventional politics is
convenient for those who use the abortion issue to raise money and pursue political power. That defines the limits of their real agenda.
And that is where we are now in respect to abortion. The
Sidewalk Counsellors represent the one realistic way to stop abortion
and the last hope for putting an end to the violence of abortion without
resorting to violence. At a minimum, the first amendment right to protest is a kind of safety valve. As witness all the countries which lacked such rights and which have now exploded into violent protests.
to pay off an influential part of his constituency, the Obama Justice
Department is doing its best to close the last remaining safety valve by
using FACE to suspend the first amendment rights of pro life activists.
nonviolent direct action in America
For me, using nonviolent direct action--aka first amendment rights--has been one of the major callings of my life. I was a Freedom Rider in 1961 and a Draft Card burner in 1966. I have seen major changes in America because of the peace and civil rights movements of the 1960s. Nonviolent direct action--sit-ins and Freedom Rides--finally put an end to racial segregation. The anti Vietnam War movement built upon the success of the Civil Rights Movement. For one of the very few times in history people continued to oppose a war and resisted being intimidated.
I believe in nonviolent direct action, that it is the kind of spiritual warfare that Jesus and Saint Paul taught us to use. [ cf. The Spiritual Warfare of Jesus Christ ] I believe that personal witness is necessary to a Christian life--you can't pretend to be a Christian if you won't do it. You shrivel in the Spirit when you fail to do it. That describes most so-called Christians.
Most Christians do not believe it. Nominally
pro life Christians are our worst critics because they have been
brainwashed by the same media as everyone else, and because anything
which calls for personal risk violates their religion. They are all in favor of the war from a safe distance. They support the troops with a $ 1 bumper sticker.
I am not at all confident that the courts can handle the question of the first amendment rights of pro life activists. But we have to proceed upon that assumption, at least for a while. The consequences of failure are very serious.
is a basic difference between the first amendment rights of pro life
Sidewalk Counsellors and those of others who claim the protection of the
First Amendment. We don't just protest abortion, we prevent abortion. Two lives saved and Planned Parenthood loses $ 500 and also loses its moral justification--these abortions are necessary.
And there is no way to compromise. Is abortion medicine or is it murder ?
A union picket line intends to at least eventually resolve the dispute with management. Customers
crossing a union picket line to buy bread are not deeply ambivalent
about it and easily embarrassed about what they are doing. The store loses $ 5 if they turn back.
the upper levels of the law there is an extreme standard of first
amendment rights, inherited from the 1960s, which most people do not
understand or agree with. And which they would never extend to pro life activists, if it was left up to them. Large
groups of protestors who enjoy some popular support and a sympathetic
media spotlight are likely to have their first amendment rights
protected. Pro life activists, out there harassing women, are classed as terrorists.
Sidewalk Counsellors are a small and unpopular group of which most nominally pro life Christians do not approve. Over the past 20 years, the main stream media has carried on a relentless policy of ignore them when you can, smear them when you can't. People are oblivious of the fact that we rescue babies from death. The only time they hear of us is when an abortionist is shot in some other state. We have received almost no support from other nominally pro life Christians. We do seem to have received a little support from God, which has helped us stay out there all these years. Thank God for that.
Permissive Intervention under Rule 24(b)
common question of law or fact
On page 8 the Magistrate discusses the bearing of Permissive Intervention under Rule 24(b) which provides
that, upon a timely motion, a court may permit anyone to intervene who
has a claim or defense that shares with the main action a common question of law or fact.
Ken and Jo Scott and the rest of us have been picketing together for
about 20 years, during which our first amendment right to do it has been
under constant attack by the City and County of Denver acting under color of the law
on behalf of Planned Parenthood, which attack has now been renewed by
the Obama Justice Department, I think I can meet that requirement.
The follow up consideration is (2) whether the petitioner's interests are adequately represented by the existing parties. cf page 8 discussion of Rule 24(b)(1)(B).
Which is the same question raised by (4) of Rule 24(a) Intervention as a Matter of Right, which the Magistrate discusses on page 7. I will address them together.
4. the applicant's interest is not adequately represented by existing parties
As a pro se defendant, I cannot represent the other actors in concert who are being targeted by this lawsuit. Most of them cannot afford lawyers and are not familiar enough with legal procedures to attempt to represent themselves pro se. I find it hard enough to deal with all the complex rules even though I do have some familiarity with courts. But the lawyers representing Jo Scott and Ken Scott cannot adequately represent the rest of us.
Jo Scott's lawyer was forced to abandon any defense of her First
Amendment rights, the assumption that I can rely upon him to stand up
for my first amendment rights is silly. He can hardly defend my rights when he can't defend her rights. She was forced into a shameful surrender of her First Amendment Rights under coercion from the Justice Department and the Court.
I know that a lawyer's first obligation is to get the best deal he can for his client, regardlessoftheconsequencesforany otherdefendants, or even for his client in the long run. And
Jo Scott was effectively coerced and intimidated into abandoning her
defense under the threat of a lawsuit which would not only take away her
First Amendment rights but also hit her with another heavy financial
penalty on top of the one she has already received in the Laura Brown
case. They made her an offer she could not refuse, as the godfather put it.
experience with the pro Planned Parenthood courts of Denver County has
left her with no faith that any court will affirm her First Amendment
rights as a Sidewalk Counsellor. The surveillance tape shows her walking along behind Laura Brown without ever touching her. Equals A. harassment and B. impeding. Now it equals a violation of FACE.
addition to facing a heavy fine and jail sentence because of her
kangaroo court conviction in the Laura Brown case, Jo now has to pay $
750 to this woman for impeding her. Equals obstruction under FACE. Plus $ 750 to the cigarette smoking boy friend who came within 6 inches of Ken after threatening him. He was seeking reproductive services for his girl friend, but took the time to smoke a cigarette and threaten Ken. When Jo stepped between them, she violated FACE. Plus his rights as a smoker--whatever federal law that comes under. RICO probably.
So Jo Scott has not only surrendered her First Amendment Rights, she is going to pay out $ 1500--or more--for the privilege. I can understand how and why she was coerced and intimidated into doing this. But it is obvious to me that those involved cannot be relied upon to defend my first amendment rights. To say the least. It is ridiculous to pretend otherwise.
Ken Scott's Situation and Mine
Neither can I rely upon Ken Scott's legal representatives to adequately represent the rest of us unidentified protestors acting in concert. Ken has
to defend himself against a claim for heavy money damages which, at a
minimum, will distract him and his lawyer from focusing upon the defense
of his first amendment rights. So far, I am not threatened by any financial claims. So my situation is different from that of Ken Scott.
A lawyer's second major priority is to win the case, even if that means using a technicality like the best available evidence rule. Pursuing larger principles is often a luxury he cannot afford. The
defense of the first amendment rights of our pro life sidewalk
counselling effort may very well get lost in the legal shuffle. These cases are often decided on the basis of rules which have little to do with basic principles. They seldom arrive at a court where First Amendment Law is the primary question to be decided.
The lawyers care about winning the case. Which is not always the same thing as caring about preserving the first amendment rights of pro life sidewalk counsellors. My priorities are different from those of the lawyers. As I outlined in the previous section. First Amendment Rights are my number one and two and three priorities. That is how we save babies. It is not negotiable.
may be knowledgeable in the law, but the lawyers do not really
understand what we have learned from 20 years on the front line and more
than 100 cases. cf. Experience is the best teacher. They
don't understand the pervasive prejudice against pro life activists
which is found even among nominally pro life Christians because of the
relentless policy of the media to either ignore us or smear us. You would never learn that we save babies by standing out there carrying signs and harassing women. The only time they put the spotlight on us is when someone somewhere shoots an abortionist. [ cf. my bulletin The Media Murders the Pro Life Movement ] So
the lawyers do not understand what we have learned the hard way, which
is that it is almost impossible for a pro life activist to find a jury
which has any sympathy with what we do. Plus juries have no understanding of what the First Amendment actually allows. They don't get out there with signs and disturb the peace by yelling and screaming at people so they don't see why we have to.
lawyers do not understand that we are not so much trying to get off as
to get on with the job of rescuing babies from the trash bucket. The call to rescue and the commitment to stick with it is a central purpose in life for us. Too many former sidewalk counsellors have quit the battle as per advice from the lawyer.
Who Pays the Bills
Ken Scott's lawyer is being paid by a national pro life legal foundation. Which may or may not continue to pay the bills if the case drags on. We have had 20 years of experience with pro life legal foundations. They have their own agendas and these cases are ridiculously expensive. There is no guarantee they will continue to provide support, especially if the case has to be appealed.
best free speech case we ever had at 20th and Vine was dumped by Pat
Robertson's legal outfit because they had taken on too many cases. Two women were hauled off to jail in handcuffs and charged with disturbing the peace because of signs which read the killing place.
The women settled for $ 5000 and gave up Sidewalk Counselling. Meanwhile, the Denver Police intensified their attack on our picket line. The same Denver Detective, who also worked for Planned Parenthood as their Security Consultant, who had framed up the charge against the two women, continued to frame up charges against me and others. She
became a false arrest specialist who used her position with the Police
Department to trump up cases against Sidewalk Counsellors.
The high powered lawyers who filed our 1994 Section 1983 under color of the law action quit us and left us to proceed pro se. We continued as best we could and finally got another lawyer to help. His very first Section 1983 case. We were heavily out-lawyered and lucky to get a draw on this lawsuit. But we did halfway back them off.
I know that Ken is committed to pursuing the case all the way and going pro se if he has to. But he is not a lawyer and he can't represent me. Ken has the chance to defend himself from this attack by the Justice Department as I do not. Since I am in fact included in this attack as an unidentified protestor acting in concert I believe I have the right to intervene in this lawsuit, whether by right or by permission I will leave up to the Judge.
My situation is different from Ken's in that he mainly leaflets at the driveway while I am usually down the block on the sidewalk. The peculiar injunction requested by the Justice Department lawyers does not just target those who leaflet at the driveway. It also aims to force all of us to move across the street from the public sidewalk in front of Planned Parenthood. They never explain why they added this request to their 10 count charge against Ken for impeding / obstructing the driveway. But the reason is obvious enough. They really do want to shut down the picket line which I have helped build up in the past 20 years. They aren't just targeting those like Ken who primarily leaflet in the driveway.
walking and talking and impeding
If I could prove that I am not one of those unidentified protestors acting in concert
with Ken Scott by leafletting = impeding = obstructing = violating FACE
at the driveway, I would still be vulnerable to the charge that I have
walked and talked and impeded further on down the sidewalk. The
injunction to keep everyone 25 feet from the property line = across the
street from the public sidewalk--is not tied to the allegation that
they have violated FACE by leafletting in the driveway. They want us across the street whether or not we have violated FACE. Or rather, the presupposition of this law suit is that everything we do out there is a violation of FACE !
Ken is far more vulnerable than I am in this lawsuit. Everyone who knows him knows that he is a gentle giant of a man without a mean bone in his body. But he is large and, when he is preaching, he is loud. Any jury drawn from the Denver area jury pool will find him guilty of whatever--being large and loud. Harassing and Impeding. Interfering with health care. Obstructing by leafletting. I am less large and, usually, less loud. I make a smaller target. That is why the Justice Department lawyers don't want me in this case. They want to convict Ken of something and then proceed via guilt by association to apply it to all of us actors in concert. Ken
has the character of a gung ho soldier who embarrasses his comrades by
always running to the front when the firing begins while they are moving
towards the rear. If there is a law against over enthusiastic leafletting, there is no doubt he is guilty under it. He tries hard to communicate a message to everyone who goes through that driveway.
More than anyone else out there he pushes first amendment rights to the max. Right up to the line and sometimes across it. Such as his famous air trespass case when he was up on a ladder and leaned over the property line. He has had one ticket at 38th and Pontiac because the leg of his chair was over the yellow line. I stay out there a couple of hours. He stays out an extra hour and then goes some where else to picket. He keeps at it despite the Denver police being constantly on top of him.
We have 20 years of experience with finding the line of our First Amendment and Colorado Second Amendment rights. We are experts on free speech rights in front of abortuaries. What it is supposed to be and what it actually is because of politicians and judges whose careers depend upon NARAL. Over 20 years we have learned the hard way where the line is in respect to the first amendment. But the line keeps shifting. And the City of Denver refuses to clarify it. Years
ago, with the encouragement of the District Six police, I tried to get
the City Attorney to clarify what the law was in respect to disturbing the peace by calling out to customers, but they never answered me. They could not admit that they intended to enforce a ban on free speech. Now the Obama Justice Department has adopted the same policy. They obviously want to move the line again with this lawsuit.
bending the law
A week after it happened, four cops showed up to hand Ken a ticket for pedestrian in roadway. The supposition that it is necessary for the federal government to come in is absurd to anyone familiar with the situation here. The
Obama Justice Department is intervening because the Denver police can't
bend the law far enough to satisfy Planned Parenthood and NARAL. They are hoping that the power of the Federal Government will accomplish what the Denver establishment could not. But they are up against the same power that has helped us stay out there all these years.
There is a very liberal standard of free speech rights well established in the law. Which NARAL controlled government will not extend to those who stand in front of the abortuaries. The
whole purpose of FACE and CRS 18-9-122 was to create a new and much
more restrictive standard which could be specially applied to health care facilities--the newspeak label for abortuaries. Prostitutes are now sex workers and places where babies are aborted are Reproductive Health Care Centers.
jury pool is so poisoned, that it is almost impossible for a pro life
activist to be acquitted of anything in the City and County of Denver. Pro life activists are up against the same kind of bias that civil rights activists faced in the deep South in the early 1960s.
To most people, first amendment means the freedom to call up the talk show and say something critical of the President. A righteous pro lifeChristian waits until he is invited to be the banquet speaker before he gives vent to his feelings contra abortion.
Ken is out there arguing with cigarette smoking boy friends and ladies who cuss him out before finally deciding they don't really want to put the baby in the trash. It is sidewalk level free speech. It does not square with church decorum and respectable Christians want nothing to do with it. A jury of righteous pro life Christians would convict Ken Scott of whatever. Not leaving it up to God and the government to stop abortion.
The Obama Justice Department may succeed in shutting down the First Amendment rights of Sidewalk Counsellors. Who are an unpopular handful which embarrasses all the other conformist and cowardly and nominally pro life Christians. They don't use their own First Amendment Rights to oppose abortion so they won't be bothered when we lose ours. They already believe that it violates church decorum to get out there wearing a sign and hollering at abortion customers: don't kill your baby.
attempt by the Justice Department lawyers to disguise what they are
doing and explain it away displays a shameless pettifogging shysterism
characteristic of the lowest level of the legal profession. And they have no excuse for it. It would shame an ambulance chaser trying to make his rent. They show a contempt for the law and a lack of professional self respect. They
have obviously been selected for their willingness to be enthusiastic
errand boys and errand girls for Planned Parenthood and NARAL. Their
refusal to even notice the First Amendment implications of the
injunction they request displays their entire lack of respect for the
bill of rights.
Of course it is hardly surprising that people who have taught themselves to refer to abortion as a reproductive service and to describe abortuaries as health care facilities should have entirely lost their moral compass. They would have no trouble labeling Auschwitz as a Recycling Center.
legalized killing of 50 million babies in America has brought about a
pervasive moral and spiritual corruption of the entire legal
establishment. It has corrupted law and language. Judgment at Nuremberg has
a dramatic presentation of what happened to the German judges when they
had to justify and apply the laws of Hitler's Germany.
But you don't have to go back to Hitler's Germany to find a parallel. In
the American South in the 1960s there was a wholesale corruption of the
legal establishment by the necessity of providing a legal camouflage
for racial segregation. President Kennedy
appointed five of the worst segregationist judges to ever sit on the
federal bench, totally unscrupulous men who went along with the agenda
of the segregationists and bent or broke the law to accommodate it.
They may shut us down. But in the mean time we have to carry on the best we can. I expect to be judged in the highest court by what I do or fail to do on behalf of the least of these. That is the only judgment I fear. Everyone else involved with this case should fear the same judgment. cf. Matthew 25.31-46.
Terry Sullivan November 4th 2011 _______________________________
from: Terry Sullivan 1526 East 35th Avenue Denver CO 80205 303 295 6891
I have mailed a copy of this objections to the 10/19/11 recommendation to Je Von Jung, Justice Department, 950 Pennsylvania Ave., N.W. Wash D.C. 20530 November 4th 2011.