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United States v. Dillard

United States Court of Appeals, Tenth Circuit

July 28, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellant/Cross-Appellee,
ANGEL DILLARD, Defendant - Appellee/Cross-Appellant


Thomas E. Chandler, Attorney, Department of Justice, Civil Rights Division, Appellate Section (Jocelyn Samuels, Acting Assistant Attorney General; Diana K. Flynn and Dennis J. Dimsey, Attorneys, Department of Justice, Civil Rights Division, Appellate Section, with him on the briefs), Washington, D.C., for Plaintiff--Appellant/Cross-Appellee.

Theresa Lynn Sidebotham of Telios Law, PLLC, Monument, Colorado (Donald A. McKinney of McKinney Law Firm, Wichita, Kansas, with her on the briefs), for Defendant--Appellee/Cross-Appellant.

Before McHUGH, McKAY, and BALDOCK, Circuit Judges. BALDOCK, J., dissenting.


McKAY, Circuit Judge.

These cross-appeals arise out of a civil enforcement action brought by the United States under the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. § 248, which prohibits using force, threats of force, or physical obstruction to injure, intimidate, or interfere with those seeking to obtain or provide reproductive health care services. The government alleges Defendant Angel Dillard violated FACE by sending a threatening letter to a doctor whose plans to open an abortion clinic in Wichita, Kansas, had recently been made public.

The district court denied Defendant's motion to dismiss but subsequently granted her motion for summary judgment, concluding that Defendant's letter did not contain a true threat because (1) it did not suggest unconditional, imminent, and likely violence and (2) it predicted violence by third parties but did not suggest Defendant would herself engage in violence against the doctor. The government appealed the district court's grant of summary judgment. Defendant then cross-appealed, arguing the district court should have granted her earlier motion to dismiss both because the government lacked standing to bring this action against her and because FACE is unconstitutional both facially and as applied.


In late 2010, Dr. Mila Means, a family practitioner in Wichita, confirmed public reports that she intended to begin offering abortion services to the public. At that time, no doctors were performing abortions in Wichita. The last doctor to do so, Dr. George Tiller, had been shot to death in 2009 by an anti-abortion activist named Scott Roeder while attending church services. Dr. Tiller had been " a mentor and a very admired colleague" of Dr. Means for several years before his death. (Appellant's App. at 142.)

On January 14, 2011, federal law enforcement officers held a meeting at Dr. Means' office " to brief her and her staff on security measures regarding abortion extremism." (Appellant's Sealed App. at 265.) Among other things, they " talked about the Summer of Mercy, the fire bombing of [Dr.] Tiller's clinic . .., the fact that [Dr.] Tiller had been shot by Shelley Shannon in both arms, that [vandals had flooded Dr. Tiller's clinic by inserting a garden hose through a hole they cut in the roof], and ultimately the murder of [Dr.] Tiller at church." ( Id. ) They also discussed dealing with bomb threats and watching for suspicious packages.

On about January 15, 2011, Defendant Angel Dillard wrote a letter to Dr. Means and mailed it to her office in an envelope bearing Defendant's name and return address. This letter states in full:

Dr. Means,
It has come to our attention that you are planning to do abortions at your Harry St. location. I am stunned that you would take your career in this direction. Fewer people than ever before are pro-abortion, quality physicians wouldn't even consider associating themselves with it, and more Americans than ever before are unwilling to turn a blind eye to the killing of a baby when the ratio of adoption is 36 couples to 1 baby.
Maybe you don't realize the consequences of killing the innocent. If Tiller could speak from hell, he would tell you what a soulless existence you are purposefully considering, all in the name of greed. Thousands of people are already looking into your background, not just in Wichita, but from all over the U.S. They will know your habits and routines. They know where you shop, who your friends are, where you drive, where you live. You will be checking under your car everyday--because maybe today is the day someone places an explosive under it. People will be picketing your home, your office. You will come under greater scrutiny than you've ever known, legally and professionally. Much worse than the disciplinary actions and ethical concerns that you've been facing. You will become a pariah--no physician will want to associate with you. You will be seen like all the other hacks that have stooped to doing abortions when they weren't good enough to maintain a real practice. You will lose your legitimate clientele, as no one bringing a baby into this world wants to be in the same facility where you are also killing them. You will have trouble keeping staff who are willing to participate in innocent blood-shedding and won't be able to keep the sanitary conditions necessary to maintain a healthy medical facility. You will end up having the same kind of rat-infested, dirty facility that they have in north-eastern Kansas. Anyone who partners with you will experience the same headaches. Not to mention the fact that you will be haunted by bloody, squirming, dismembered babies in your sleep. You can't do what is morally reprehensible and enjoy peace of mind. The Bible says, " There are six things the Lord hates . . . hands that shed innocent blood, a heart that devises evil schemes, feet that are quick to rush into evil . . ." Proverbs 6:16-18. Abortion kills human life--it matters not if you kill it at 6 weeks or at 26 weeks, it's still the unnatural, violent death of a human baby for the sake of convenience. You are doing what the Humane Society wouldn't allow to happen to a pregnant dog or cat.
I urge you to think very carefully about the choices you are making. There are 3 churches within 1 block of your practice, and many others who must take a stand. We will not let this abomination continue without doing everything we can to stop it. We pray you will either make the right choice and use your medical practice to heal instead of kill, or that God will bring judgment on you, the likes of which you cannot imagine. We don't want you killing our children in our community. Good people are tired of this rampant evil, and will stand against you every step of the way. Do the world a favor and ABORT this stupid plan of yours. It's not too late to change your mind.
Angel Dillard

(Appellant's App. at 25.)

Dr. Means' office manager received the letter on January 19, 2011, and immediately notified the Wichita police. The office manager and a local police officer showed the letter to Dr. Means. ( Id. at 148.) A copy of the letter was also forwarded to the FBI, and thereafter an FBI agent interviewed Defendant. The FBI did not take any of the follow-up actions they would have taken had they determined Defendant to be a threat. ( See Appellant's Sealed App. at 180.)

Shortly after receiving the letter, Dr. Means' staff found an Associated Press article on the internet which discussed Defendant's friendship with Scott Roeder, Dr. Tiller's murderer. This article apparently reported that Defendant had befriended Mr. Roeder while he was in jail for the murder.[1] The article indicated that Defendant admired Mr. Roeder for following his convictions and being " the only one able to stop abortions in Wichita." (Appellant's App. at 153.) The article further reported that Defendant " said she had been questioned several times by the FBI, and she and her husband have no plans to do anything of violence to anyone." ( Id. at 153-54.)

Reading this news article did nothing to allay Dr. Means' concerns. She believed that Defendant's admiration of Mr. Roeder suggested a likelihood that she too would go " from protester to murderer," and she remained very anxious that Defendant or her associates would indeed place an explosive under her car as suggested by the letter. ( Id. at 154.) Dr. Means accordingly began taking additional security precautions, such as parking her car in sight of her office, taking her car to the mechanic, and installing door alarms.

In April 2011, the government brought this civil enforcement action against Defendant, seeking fines as well preliminary and permanent injunctive relief. After a hearing, the district court denied the government's request for a preliminary injunction. Defendant then filed a motion to dismiss in which she argued the government lacked standing to bring this action and could not show a violation of FACE because the statute only covers current abortion providers and Dr. Means was not providing abortions at the time the letter was written. The district court denied the motion to dismiss, holding that " the statute is properly read to apply to true threats directed at discouraging physicians from completing training for the provision of abortion services." ( Id. at 338.)

While discovery was ongoing, Dr. Means abandoned her plans to open an abortion clinic due to recent changes in Kansas law. As a result, the protest activities against her dropped off.

After the parties completed discovery, Defendant filed a motion for summary judgment. She argued that no reasonable person could view her letter as a threat because it did not threaten imminent violence or convey a likelihood of execution, and she argued any finding of a violation would therefore violate the First Amendment. Defendant also argued that summary judgment was warranted because the government had presented " no direct evidence to show . . . that she subjectively intended the letter to be a threat of force." (Appellant's Sealed App. at 101.)

The district court agreed that the letter did not convey a true threat because (1) the alleged threat of a car bomb was not " imminent, likely and unconditional" ; and (2) " the letter says nothing about what [Defendant] will do, only what other entities might do." (Appellant's App. at 365-66.) The court granted summary judgment to Defendant on this ground, and accordingly did not resolve Defendant's alternative argument that the government had failed to show a subjective intent to threaten.

The government appeals the district court's summary judgment decision, and Defendant cross-appeals the district court's denial of her earlier motion to dismiss. The parties have also filed documents discussing whether the parties' briefs and portions of the appellate appendix should be sealed. We will address the government's appeal first, then ...

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