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August 2, 2015
  United States v. Dillard - Tenth Circuit
Case Name: United States v. Dillard

Headline: Tenth Circuit Holds Letter to Doctor Who Intended to Provide Abortion Services Could Be Considered a True Threat.

Area of Law: First Amendment

Issue Presented: Did a letter to a doctor who planned to open an abortion clinic constitute a "true threat," and thus fall outside of First Amendment protection, when the letter did not directly make reference to actual acts of violence the author intended to undertake, but referenced conditionally that potential harm could come about if the doctor provided abortion services?

Brief Summary:

In 2010 Dr. Mila Means confirmed reports that she intended to start offering abortion services in Wichita, Kansas. At the time, no doctor was providing these services in Wichita. The last doctor who performed abortions in the city was murdered by Scott Roeder in 2009. The Defendant, Angel Dillard, sent a letter to Dr. Means indicating some harm may come to her if she starting offering abortion services. The letter, however, made no direct mention of actual violent actions that the author was going to take. The United States Attorney General's office filed a civil lawsuit against the Defendant under the Freedom of Access to Clinic Entrances Act ("FACE").

The district court granted the Defendant's motion for summary judgment, concluding that the letter was not a true threat unprotected by the First Amendment and thus could not serve as the basis for a FACE prosecution. The Tenth Circuit held that the summary judgment was improper, as a reasonable juror could have concluded that this letter constituted a true threat unshielded by the First Amendment from FACE prosecution.

Extended Summary:

In 2010, Dr. Mila Means confirmed reports that her medical practice intended to start performing abortions in Wichita, Kansas. At this time, no doctors had performed abortions in Wichita, Kansas because of the murder of a doctor who provided abortion services by anti-abortion activist, Scott Roeder. Dr. Tiller had been a mentor and colleague of Dr. Means.

In early 2011, the Defendant, Angel Dillard, a friend of Roeder, sent a letter to the office of Dr. Means, suggesting harm may come to Dr. Means, but not directly threatening to take any violent actions. Dr. Means forwarded the letter to the FBI, which subsequently interview the Defendant. The FBI did not, however, determine that the Defendant posed a threat.

Although the FBI did not take further actions, the Attorney General of the United States brought a civil action under FACE against the Defendant. FACE prohibits using force, threats of force, or physical obstruction to injure, intimidate, or interfere with those seeking to obtain or provide reproductive health services. The statute does not, however, define "threat of force." Nor does it prohibit any expressive conduct protected by the First Amendment.

The district court granted the Defendant's motion for summary judgment, reasoning that the letter did not contain a true threat. The district court concluded that the letter did not contain an unconditional, imminent, and likely violence and that the letter predicated violence by third parties, but did not suggest the Defendant herself would engage in any violent acts.

A panel of the U.S. Court of Appeals for the Tenth Circuit reversed, by 2-1 vote. The majority turned to the United States Supreme Court's statements on true threats. The Court, according to the majority, defined true threat to mean "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Further, to constitute a true threat under the Court's true threat jurisprudence, the majority pointed out that the speaker does not have to actually intend to act upon the threat. The majority indicated that this objective test demands a fact-intensive inquiry and is usually left to a jury, unless the speech or expressive conduct is clearly protected by the First Amendment.

Here, the majority stated that, under previous case law, a conditional threat can still be considered a true threat. While a conditional threat indicates that that violence will only occur if the recipient fails to comply with the speaker's demands, it still can constitute a true threat because of the prospect of actual violence. Thus, the majority concluded that the letter, despite being a conditional threat, could be a true threat.

The majority next addressed the district court's conclusion that the letter was not a true threat because it did not suggest imminent harm. The majority stated that other circuit courts have held that a true threat does not have to indicate an imminent threat of violence, but merely has to have a likelihood of execution.
The majority turned to the district court's final conclusion that the letter was not a true threat because it stated a third party, not the author, may cause the harm. The majority concluded that it was not necessary for the speaker to directly threaten violence.

The majority stated that the essence of their holding was that a speaker cannot avoid a true threat label by using the passive voice or insinuating that "someone" might cause the harm. A holding to the contrary would render FACE "powerless against the ingenuity of threateners who can instill in the victim's mind as clear an apprehension of impending injury by an implied menace as by a literal threat," the majority noted.

The Defendant argued that the government was improperly linking her to Scott Roeder. The majority rejected this argument, stating that a reasonable juror could conclude that this association might be relevant to whether the letter is a true threat.

The Defendant next argued that the government failed to establish a subjective
intent to threaten Dr. Means, which is a requirement under FACE. The majority stated that the government met its burden by creating a triable issue as to whether the Defendant intentionally mailed the threatening letter and intended the consequential act of intimidation.

The Defendant lastly argued that the intent element in the FACE statute requires the underlying reproductive health services must be operational at the time of the threat rather than contemplated in the future. The majority found no support for this theory in the language of the statute.

The majority concluded that a reasonable jury could find the letter to be a true threat. Thus, the district court's grant of summary was reversed and the case was remanded.

The majority briefly addressed the government's standing to bring this issue under FACE. The Defendant argued that the government's standing derived from Dr. Means. The statute states, however, that if the United States "has reasonable cause to believe that any person or group of persons is being, or has been, or may be injured by the conduct constituting a violation of this section, the Attorney General may commence a civil action in any appropriate United States District Court." Thus, the government had standing to bring this action since it had reasonable cause to believe that someone may be injured.

The Defendant made additional standing arguments as to FACE's constitutionality under the Commerce Clause and its potential violation of the Religious Freedom Restoration Act. The majority dismissed these arguments, stating they were not raised at the district court.

Judge Baldock dissented, arguing that the majority's holding extended the true threat jurisprudence too far and that the facts of this case did not warrant this extension. The dissent stated that the Defendant's letter was not a true threat because it was a prediction that violence may come, rather than an actual threat of violence. The dissent cited several previous cases in which the threats had more immediacy and indicated violence would occur, whereas here the letter conditionally stated that violence might happen.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/13/13-3253.pdf

Panel: McHugh, McKay, and Baldock

Date of Issued Opinion: July 28, 2015

Docket Number: Nos. 13-3253 & 13-3266

Decided: The Tenth Circuit reversed the district court's order granting summary judgment in favor of the Defendant. The case was remanded to the district court.

Case Alert Author: Leland Churan

Counsel:

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/CrossAppellee.

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.

Author of Opinion: Hon. Monroe G. McKay

Case Alert Circuit Supervisor: Dawinder S. Sidhu

Edited: 08/02/2015 at 10:31 PM by Dawinder Sidhu

    Posted By: Dawinder Sidhu @ 08/02/2015 10:22 PM     10th Circuit  

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