United States v. Gregg

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

9-7-2000

United States v. Gregg

Precedential or Non-Precedential:

Docket 99-5079, 99-5124, 99-5205

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Filed September 7, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 99-5079, 99-5124, 99-5205

UNITED STATES OF AMERICA, Appellant in No. 99-5079

v.

JOSEPH R. GREGG; RUBY C. MCDANIEL; LUIS

MENCHACA; FRANCIS S. PAGNANELLI; WILLIAM

CHARLES RAISER; MICHAEL HENRY; ROSE KIDD;

ARNOLD MATHESON; KATHARINE O'KEEFE; EVA

ALVARADO; JOSEPH F. O'HARA; JOSEPH ROACH;

ROBERT RUDNICK; JAMES SODERNA; JAMES SWEATT;

ELIZABETH WAGI; BYRON ADAMS; KEVIN BLAKE; AMY

BOISSONNEAULT; BALDO DINO; STEPHEN C. ELLIOT;

SHERYL FITZPATRICK; MARY FOLEY; DENNIS GREEN;

GEORGE LYNCH; RAYMOND MICCO; ALEXIS

MULRENAN; RALPH TRAPHAGEN; JAMES TROTT;

KIMIKO TROTT

UNITED STATES OF AMERICA

v.

JOSEPH R. GREGG; RUBY MCDANIEL; LUIS MENCHACA;

FRANCIS S. PAGNANELLI; WILLIAM RAISER; MICHAEL A.

HENRY; ROSE KIDD; ARNOLD MATHESON; KATHARINE

O'KEEFE; EVA ALVARADO; JOSEPH O'HARA; JOSEPH H.

ROACH; ROBERT RUDNICK; JAMES SODERNA; JAMES

SWEATT; ELIZABETH WAGI; BYRON ADAMS; KEVIN

BLAKE; AMY BOISSONNEAULT; BALDO DINO; STEPHEN

ELLIOT; SHERYL FITZPATRICK; MARY FOLEY; DENNIS

GREEN; GEORGE LYNCH; RAYMOND MICCO; ALEXIS

MULRENAN; RALPH TRAPHAGEN; JAMES TROTT;

KIMIKO TROTT

Rose Kidd; James Sweatt; Elizabeth Wagi;

Raymond Micco; William Raiser; James Soderna;

Kevin Blake; Baldo Dino;

Appellants in No. 99-5124

UNITED STATES OF AMERICA

v.

JOSEPH R. GREGG; RUBY MCDANIEL; LUIS MENCHACA;

FRANCIS PAGNANELLI; WILLIAM RAISER; MICHAEL A.

HENRY; ROSE KIDD; ARNOLD MATHESON; KATHARINE

O'KEEFE; EVA ALVARADO; JOSEPH O'HARA; JOSEPH H.

ROACH; ROBERT RUDNICK; JAMES SODERNA; JAMES

SWEATT; ELIZABETH WAGI; BYRON ADAMS; KEVIN

BLAKE; AMY BOISSONNEAULT; BALDO DINO; STEPHEN

ELLIOT; SHERYL FITZPATRICK; MARY FOLEY; DENNIS

GREEN; GEORGE LYNCH; RAYMOND MICCO; ALEXIS

MULRENAN; RALPH TRAPHAGEN; JAMES TROTT;

KIMIKO TROTT

Francis S. Pagnanelli, Appellant in No. 99-5205

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civ. No. 97-cv-02020)

District Judge: Honorable John C. Lifland

Argued: April 25, 2000

Before: BECKER, Chief Judge, WEIS and

OAKES,* Circuit Judges.

(Filed: September 7, 2000)

_________________________________________________________________

* Honorable James L. Oakes, United States Circuit Judge for the Second

Circuit, sitting by designation.

2

FAITH S. HOCHBERG, ESQUIRE

United States Attorney

COLETTE R. BUCHANAN, ESQUIRE

Assistant United States Attorney

Federal Building, Suite 700

970 Broad Street

Newark, NJ 07102-23535

BILL LANN LEE, ESQUIRE

Acting Assistant Attorney General

DAVID K. FLYNN, ESQUIRE

JENNIFER LEVIN, ESQUIRE

(ARGUED)

Department of Justice

Civil Rights Division

P.O. Box 66078

Washington, DC 20035-6078

Counsel for Appellants/

Cross-Appellees

EDWARD J. GILHOOLY, ESQUIRE

(ARGUED)

14 Franklin Street

Morristown, NJ 07960

Counsel for Appellee/

Cross-Appellant Francis S. Pagnanelli

MICHAEL C. PELLETIER, ESQUIRE

335 Route 24, P.O. Box 700

Chester, NJ 07930

Counsel for Appellee Eva Alvarado

RUSSELL J. PASSAMANO, ESQUIRE

65 Madison Avenue

Morristown, NJ 07960

Counsel for Appellees/

Cross-Appellants William Raiser,

Rose Kidd, James Soderna,

James Sweatt, Elizabeth Wagi,

Baldo Dino, Raymond Micco

3

DONALD DESMOND CAMPBELL,

ESQUIRE

186 Sherman Avenue

Berkeley Heights, NJ 07922

Counsel for Appellee Joseph O'Hara

RALPH COTI, ESQUIRE

Herriot, Coti & Sugrue

36 West 44th Street, Suite 400

New York, NY 10036

Counsel for Appellee Joseph H.

Roach

WILLIAM C. CAGNEY, ESQUIRE

Lane & Mittendorf

99 Wood Avenue South

Metro Corporate Campus I

Iselin, NJ 08830

Counsel for Appellee Byron Adams

MICHAEL O. CUMMINGS, ESQUIRE

Morgan, Finnegan, Pine, Foley & Lee

345 Park Avenue

New York, NY 10154

Counsel for Appellee Kevin Blake

PETER M. BURKE, ESQUIRE

Cooper, Rose, & English

480 Morris Avenue

Summit, NJ 07901

Counsel for Appellee George Lynch

OPINION OF THE COURT

OAKES, Circuit Judge.

In this case, the United States appeals the decision of the

District Court for the District of New Jersey (John C.

Lifland, Judge) that the defendants are jointly and severally

liable, rather than individually liable, for statutory damages

of $5,000 "per violation" of the Freedom of Access to Clinic

4

Entrances Act ("FACE" or "the Act"), 8 U.S.C. S 248 (2000).

Several defendants filed cross appeals, arguing that FACE

is a violation of Congress's authority under the U.S.

Constitution's Commerce Clause and of the First

Amendment. We conclude that damages under FACE are

properly awarded jointly and severally among defendants

and that FACE is constitutional. Accordingly, we affirm the

district court.

BACKGROUND

On April 18, 1997, the United States, through the United

States Attorney General, filed a complaint for injunctive

relief and statutory damages against thirty defendants1

who, the Attorney General alleged, were an ongoing threat

to the Metropolitan Medical Associates ("MMA"), a

reproductive health clinic in Englewood, New Jersey, its

employees and persons seeking reproductive health services

at MMA. Specifically, the Attorney General alleged that each

defendant participated in one, two, or three protests that

obstructed access to MMA in violation of FACE. In the

prayer for relief in the Complaint, the Attorney General

elected to pursue statutory damages of $5,000 per

defendant in lieu of proving actual damages to MMA.

The district court held an evidentiary hearing on July 8-

10, 1997, on the Attorney General's motion for a

preliminary injunction. The evidence at the hearing

demonstrated that five of the named defendants blocked

access to MMA on August 7, 1996, twelve of the named

defendants blocked access to MMA on January 18, 1997,

_________________________________________________________________

1. The defendants named in the complaint are Joseph R. Gregg, Ruby C.

McDaniel, Luis Menchaca, Francis S. Pagnanelli, William Charles Raiser,

Michael Henry, Rose Kidd, Arnold Matheson, Katharine O'Keefe, Eva

Alvarado, Joseph Roach, Robert Rudnick, James Soderna, James

Sweatt, Elizabeth Wagi, Byron Adams, Kevin Blake, Amy Boissonneault,

Baldo Dino, Stephen C. Elliot, Sheryl Fitzpatrick, Mary Foley, Dennis

Green, George Lynch, Raymond Micco, Alexis Mulrenan, Ralph

Traphagen, James Trott, and Kimiko Trott. The Attorney General

dismissed the charges against Mary Foley and her name has been

removed from the caption. They will be referred to in this opinion

collectively as "the defendants" unless it is necessary to provide names.

5

and nineteen of the named defendants blocked access to

MMA on March 15, 1997. Accordingly, on December 22,

1997, the district court enjoined defendants and their

employees, agents, and others acting in concert with them,

from blocking and impeding access to MMA, intimidating or

attempting to intimidate or interfere with persons seeking

access to MMA, and entering or being on MMA premises.

After the preliminary injunction was granted, the parties

informed the district court that they disagreed over the

proper interpretation of the civil remedies available under

FACE. At the district court's request, the parties submitted

briefs addressed to the proper interpretation of statutory

damages under FACE. On June 18, 1998, after considering

the parties' pleadings, the district court issued a

memorandum wherein, rejecting the Attorney General's

argument that statutory damages should be assessed on

each defendant per violation, it concluded that the $5,000

statutory damages were to be assessed per violation and

that all defendants who participated in each violation would

be held jointly and severally liable for $5,000.

On December 11, 1998, the district court granted the

Attorney General's motion for summary judgment and

issued a Memorandum and Order Entering Final

Judgment. See United States v. Gregg, 32 F. Supp. 2d 151

(D.N.J. 1998). The district court found that the defendants

violated FACE when they conducted the three blockades.

See id. at 153-58. The district court determined that

Congress intended statutory damages of $5,000 to be

assessed per violation and against all responsible persons

severally. See id. at 160-61. Accordingly, the defendants

were held jointly and severally liable for $5,000 in statutory

damages for each violation in which they participated. See

id. at 161 (holding five defendants jointly and severally

liable for the August 7 blockade, twelve defendants jointly

and severally liable for the January 18 blockade, and

eighteen defendants jointly and severally liable for the

March 15 blockade).

The Attorney General timely appealed the district court's

decision and eight of the defendants2 cross appealed. The

_________________________________________________________________

2. Rose Kidd, James Sweatt, Elizabeth Wagi, Raymond Micco, William

Raiser, James Soderna, and Keven Blake filed a cross appeal on

6

Attorney General appeals that portion of the district court's

decision that imposed the statutory damages jointly and

severally. Defendants do not dispute the district court's

findings that they violated FACE. Rather, Defendants

contend that the Attorney General does not, under FACE,

have the authority to elect statutory damages in lieu of

proof of actual damages. In addition, they argue that FACE

is an unconstitutional exercise of Congress's commerce

power and that it violates defendants' rights guaranteed

under the First Amendment of the Constitution.

DISCUSSION

We review the district court's award of summary

judgment de novo. See Figueroa v. Blackburn, 208 F.3d

435, 439 (3d Cir. 2000).

I.

The task of resolving how statutory penalties are to be

awarded under FACE is a question of statutory

interpretation which begins by discerning the plain

meaning of FACE's statutory penalty provision. If

Congress's intent as to this issue is plain, referral to other

canons of statutory construction is unnecessary. See

Resolution Trust Corp. v. Nernberg, 3 F.3d 62, 64 (3d Cir.

1993); Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 842-43 (1984) ("If the intent of

Congress is clear, that is the end of the matter[.]").

To determine a law's plain meaning, we begin with the

language of the statute. See United States v. Ron Pair

Enterprises, Inc., 489 U.S. 235, 241 (1989); New Rock Asset

Partners v. Preferred Entity Advancements, 101 F.3d 1492,

1498 (3d Cir. 1996); Santa Fe Medical Services, Inc. v. Segal

(In Re Segal), 57 F.3d 342, 345 (3d Cir. 1995). If the

language of the statute expresses Congress's intent with

sufficient precision, the inquiry ends there and the statute

_________________________________________________________________

February 18, 1999. Francis S. Pagnanelli filed a separate cross appeal on

February 18, 1999. Their arguments were consolidated in one appellate

brief.

7

is enforced according to its terms. See Ron Pair Enterprises,

Inc., 489 U.S. at 241. Where the statutory language does

not express Congress's intent unequivocally, a court

traditionally refers to the legislative history and the

atmosphere in which the statute was enacted in an attempt

to determine the congressional purpose. See New Rock, 101

F.3d at 1498. Once the plain meaning of the statute is

determined, it is conclusive "except in rare cases in which

the literal application of a statute will produce a result

demonstrably at odds with the intentions of its drafters." Id.

(quoting Griffin v. Oceanic Contractors, Inc. , 458 U.S. 564,

571 (1982)).

Section 248(a) of FACE, in relevant part, provides:

(a) Prohibited Activities. -- Whoever --

(1) by force or threat of force or by physical

obstruction, intentionally injures, intimidates, or

interferes with or attempts to injure, intimidate, or

interfere with any person because that person is or has

been, or in order to intimidate such person or any

other person or any class of persons from, obtaining or

providing reproductive health services

. . .

shall be subject to the . . . civil remedies provided in

subsection (c)

18 U.S.C. S 248(a)(2000). FACE further prohibits the

intentional damage or destruction of a facility because it

provides reproductive health services. See id . Any person

aggrieved by the foregoing actions may bring a civil action

for relief. See 18 U.S.C. S 248(a)(1)(A) (2000).

In any action under FACE, a person aggrieved by conduct

prohibited under the Act, may obtain "temporary,

preliminary or permanent injunctive relief and

compensatory and punitive damages." 18 U.S.C.

S 248(c)(1)(B) (2000). In addition, FACE allows a plaintiff in

a civil action to elect, "in lieu of actual damages, an award

of statutory damages in the amount of $5,000 per

violation." 18 U.S.C. S 248(c)(1)(B) (2000). The Act permits

the U.S. Attorney General and state attorneys general to

bring civil actions for the same relief if they believe that a

8

person or group of persons has been aggrieved by violations

of the Act. See 18 U.S.C. SS 248(c)(2), (3) (2000); H.R. Rep.

No. 103-306, at 13 (1993), reprinted in 1994 U.S.C.C.A.N.

699, 710. In civil actions brought by an attorney general,

The court, to vindicate the public interest, may also

assess a civil penalty against each respondent --

(i) in an amount not exceeding $10,000 for a nonviolent

physical obstruction and $15,000 for other first

violations; and

(ii) in an amount not exceeding $15,000 for a

nonviolent physical obstruction and $25,000 for any

other subsequent violation.

18 U.S.C. S 248(c)(2)(B) (2000).

The Attorney General argues that the district court

incorrectly awarded statutory damages per violation

presumably to be shared by the defendants involved with

each blockade and contends that FACE and its goals

require statutory damages to be awarded $5,000 per

defendant. We agree with the district court that the

"dichotomy of expression" between the civil remedy

provisions of FACE demonstrates Congress's intent that

statutory damages be imposed per violation and jointly and

severally among the defendants who participated in the

blockade. Gregg, 32 F. Supp.2d at 160; see also Milwaukee

Women's Medical Services, Inc. v. Brock, 2 F. Supp. 2d

1172, 1178 (E.D. Wis. 1998) (awarding statutory damages

per violation rather than per defendant); Greenhut v. Hand,

996 F. Supp. 372, 379 (D.N.J. 1998) (same); Planned

Parenthood of Southeastern Pennsylvania, Inc. v. Walton,

1998 WL 88373 at *1-2 (E. D. Penn. Feb. 12, 1998) (same).

In authorizing compensatory statutory damages of

$5,000 in lieu of actual damages, Congress uses the phrase

"per violation." 18 U.S.C. S 248(c)(1)(B). This is in sharp

contrast to the language used in the provision permitting

courts to assess substantial civil penalties to vindicate the

public interest in cases brought by attorneys general. See

18 U.S.C. S 248(c)(2)(B). In S 248(c)(2)(B), an attorney

general can request civil penalties of up to $25,000"against

each respondent." Id. The language ofS 248(c)(2)(B)

9

illustrates that Congress knew how to explicitly instruct a

court to assess damages per defendant rather than per

violation. The absence of analogous "per respondent"

language in S 248(c)(1)(B) and the use instead of the phrase

"per violation" indicates that Congress carefully considered

the issue and decided that compensatory statutory

damages will be imposed per violation, a manner that

differs from the civil penalties imposed to vindicate the

public interest.

We disagree with the Attorney General that the use of

"whoever" in S 248(a) means that compensatory statutory

penalties are to be imposed individually. Section 248(a)

defines the substantive liability under FACE. It does not

address how, under the Act, civil compensatory damages

are to be awarded. The use of the singular in that provision

thus does not overcome the specific "per violation" language

in the relevant remedy provision of the Act. Thus, the

statutory language indicates that Congress intended that

compensatory statutory damages, like those imposed in this

case, are awarded per violation, presumably to be shared

jointly and severally among the defendants who

participated in the violation.

This interpretation is consistent with FACE's legislative

history and the atmosphere of anti-abortion violence in

which FACE was enacted. FACE was enacted in 1994

against a backdrop of escalating violence directed toward

reproductive health clinics, their employees, and patients.

Both the House and Senate Reports set forth detailed

accounts of the virulent national campaign waged by anti-

abortion activists. See H.R. Rep. No. 103-306, U.S.C.C.A.N.,

at 699. The evidence before Congress demonstrated that

"this campaign of violence has lead to death, injury,

harassment, fear, and thousands of arrests all across the

nation." H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at 703.

Congress also set forth findings that state and local

authorities had proved inadequate, and sometimes

unwilling, to curb the violence. See S. Rep. No. 103-117, at

17-18 (1993); H.R. Rep. No. 103-306, at 6, 10,

U.S.C.C.A.N., at 703, 707 ("state and local enforcement

authorities have failed to address effectively the systematic

and nationwide assault that is being waged against health

10

care providers and patients."). Consequently, Congress

enacted FACE with substantial federal remedies to prevent

the "use of blockades, violence and other forceful or

threatening tactics against medical facilities and health

care personnel who provide abortion-related services. . . ."

S. Rep. No. 103-117, at 2. In sum, FACE serves two

important goals: First, federal remedies help compensate

individuals and health care facilities for the harm caused

by blockades and, second, they serve to deter protesters

from repeatedly violating the law.

The Attorney General argues that Congress intended

statutory damages to be assessed per individual so that

punishment would be imposed with the result of deterring

defendants from violating FACE in the future. We agree

with the Attorney General that deterrence is a primary goal

of substantial federal penalties against clinic blockaders.

This goal is well served by the availability of criminal

sanctions, punitive damages, and civil penalties. See 18

U.S.C. SS 248(b), (c). Congress explained, however, that the

statutory penalties described in S 248(c)(1)(B) are available

"in lieu of actual damages." According to the Senate Report,

they were included to ease the often difficult task of proving

actual loss in a case where anti-abortionists' tactics close a

clinic temporarily or interfere with a person's access to

reproductive health services. The senate report stated that

statutory damages were included "[b]ecause of the expense

and other difficulties of proving actual damages (for

example, a clinic's lost income)." S. Rep. No. 103-117 at 26.

Accordingly, the statutory penalties elected by the Attorney

General in this case were included with the goal of

compensating the victims of the misconduct prohibited by

FACE. As the district court noted "[o]ne person can just as

effectively injure, interfere with, or intimidate as can a

group, depending on the circumstances." Gregg , 32 F.

Supp.2d at 160. Damages to compensate thus have no

bearing on how many individuals caused the damage.

Because the legislative history of FACE indicates that the

purpose of the statutory damages is to compensate, it

follows that Congress intended that compensatory statutory

damages be awarded per violation regardless of how many

people participated in the misconduct.

11

Finally, the Attorney General argues that joint and

several liability among defendants encourages individuals

to engage in large, rather than small, blockades. With joint

and several liability, the Attorney General contends, the

total damages award "per violation" remains the same, yet

the more persons who violate the law, the smaller the

amount each defendant must pay, thus perversely tending

to encourage, rather than discourage, defendants to

organize blockades using greater, rather than smaller,

groups of people.

We are not convinced that awarding compensatory

statutory penalties per violation rather than per defendant

will cause defendants strategically to recruit more

defendants for each violation. Because of the wide variety of

remedies available under FACE, clinic blockaders will not

know the penalties that they face for their misconduct and

be able to plan accordingly. They will not know before the

suit is filed whether an Attorney General or private plaintiff

will opt for statutory damages in lieu of actual damages.

See 18 U.S.C. S 248(c)(1)(B). They will also not know if they

will be made subjects of a criminal prosecution and face

criminal fines. See 18 U.S.C. S 248(b). Furthermore, in the

case where an attorney general brings a civil action, he or

she has the option of requesting that the court assess a

civil penalty against each defendant in an amount as great

as $25,000 in an appropriate case. See 18 U.S.C.

S 248(c)(2)(B). Moreover, joint and several liability does not

solely contemplate a group of liable defendants sharing the

award among them. A liability is joint and several when

"the creditor may sue one or more of the parties to such

liability separately, or all of them together, at his [or her]

option." Black's Law Dictionary 751 (5th ed. 1979). It is

thus highly unlikely that a defendant or group of

defendants would plan a clinic blockade or other violation

of the Act in light of the penalty provisions under the Act.

Because of the varying ways penalties under the Act may

be assessed against a group of defendants involved in one

violation, we are not convinced that the deterrent value of

FACE is compromised by awarding the compensatory

statutory damages jointly and severally as the Act plainly

provides that they should be.

12

In sum, we conclude that Congress intended FACE's

compensatory statutory damages be awarded per violation

and jointly and severally among defendants. We base our

conclusion primarily on Congress's use of "per violation"

language in S 248(c)(1)(B) as opposed to the"per

respondent" phrase in S 248(c)(2)(B). Furthermore, because

Congress made statutory penalties available principally to

ease the plaintiff 's burden of proving actual damages and

other penalties to deter the misconduct prohibited by FACE

are available, the $5,000 statutory damages are awarded

per violation and jointly and severally among the

participating defendants.

II.

Defendants argue that the Attorney General may not

elect statutory damages in lieu of actual damages. Their

argument misapprehends the statute and is belied by the

Act's legislative history. Under FACE, the Attorney General

of the United States and a state attorney general may

commence a civil action against an individual or individuals

who engage in the conduct prohibited by the Act. See 18

U.S.C. S 248(c)(2). The Act provides that in an action

initiated by an attorney general, "the court may award

appropriate relief, including temporary, preliminary or

permanent injunctive relief, and compensatory damages to

persons aggrieved as described in paragraph (1)(B)." 8

U.S.C. S 248(c)(2)(B) (emphasis added). Defendants contend

that the phrase "compensatory damages" as used in

S 248(c)(2)(B) refers only to actual damages and not to

statutory damages. However, S 248(c)(1)(B) defines

compensatory damages as actual and statutory damages.

See 18 U.S.C. S 248(c)(1)(B). Thus, by using the term

"compensatory damages" in S 248(c)(2)(B), Congress plainly

meant to incorporate all of the text relevant to

compensatory damages as set out in S 248(c)(1)(B).

Therefore, the phrase "compensatory damages" as used in

S 248(c)(B) authorizes the attorney general to elect an award

of statutory damages.

Furthermore, the legislative history demonstrates that

Congress intended that statutory damages be awarded in a

civil action initiated by an attorney general. The House

13

confirmed that "[t]he Act authorizes the U.S. Attorney

General and State Attorneys General to bring civil causes of

action on behalf of aggrieved persons for the same relief

available in private actions; however, fees for attorney and

expert witnesses may not be awarded to the United States."

H.R. Rep. No. 103-106, at 3, U.S.C.C.A.N., at 700

(emphasis added). Because the relief available in private

actions includes statutory damages and Congress intended

that an attorney general be entitled to the same relief as a

private party, we reject the defendants' position that the

Attorney General may not elect statutory damages in this

case.

III.

A. Commerce Clause.

We now turn to the question whether FACE falls within

Congress's power under Article I, S 8 of the United States

Constitution. The Commerce Clause empowers Congress to

"regulate Commerce . . . among the several states." U.S.

Const., Art. I, S 8, cl. 3. Whether FACE is a proper exercise

of Congress's commerce power has been much discussed in

published opinions of United States Courts of Appeals.

Indeed, this is one of the last federal appellate tribunals to

address the issue. After considering most, if not all, of the

arguments presented by the defendants in this case, these

courts held that FACE is valid under the Commerce Clause.

See United States v. Hart, 212 F.3d 1067, 1074 (8th Cir.

2000); United States v. Weslin, 156 F.3d 292, 296 (2d Cir.

1998), cert. denied, 525 U.S. 1071 (1999); Hoffman v. Hunt,

126 F.3d 575, 582-88 (4th Cir. 1997), cert. denied, 523

U.S. 1136 (1998); United States v. Bird, 124 F.3d 667, 672-

82 (5th Cir. 1997), cert. denied, 523 U.S. 1006 (1998); Terry

v. Reno, 101 F.3d 1412, 1415-18 (D.C. Cir. 1996), cert.

denied, 520 U.S. 1264 (1997); United States v. Soderna, 82

F.3d 1370, 1373-74 (7th Cir.), cert. denied, 519 U.S. 1006

(1996); United States v. Dinwiddie, 76 F.3d 913, 919-21

(8th Cir.), cert. denied, 519 U.S. 1043 (1996); United States

v. Wilson, 73 F.3d 675, 679-88 (7th Cir. 1995), cert. denied,

519 U.S. 806 (1996); Cheffer v. Reno, 55 F.3d 1517, 1519-

22 (11th Cir. 1995). Today, this Circuit aligns with the

decisions of its sister courts of appeals and holds that

14

FACE is a proper exercise of Congress's Commerce Clause

power.

In United States v. Lopez, 514 U.S. 549, 558-59 (1995),

a decision aptly described by this Court as changing the

Commerce Clause landscape, see United States v. Parker,

108 F.3d 28, 29 (3d Cir. 1997), the Supreme Court

identified three broad categories of activity that Congress

may regulate under its commerce power. Congress may: 1)

"regulate the use of the channels of interstate commerce,"

Lopez, 514 U.S. at 558 (citations omitted); 2)"regulate and

protect the instrumentalities of interstate commerce, or

persons or things in interstate commerce even though the

threat may come only from intrastate activity," Id. (citations

omitted); and 3) "regulate those activities having a

substantial relation to interstate commerce . . . i.e., those

activities that substantially affect interstate commerce." Id.

at 558-559 (citations omitted).

Although the judicial branch is the final arbiter of the

constitutionality of a statute, courts review a congressional

determination that it had the power to enact a particular

piece of legislation with substantial deference. See Parker,

108 F.3d at 30; United States v. Bishop, 66 F.3d 569, 576-

77 (3d Cir. 1995). It is not our job to "second-guess the

legislative judgment of Congress" that blockades and

violence directed at reproductive health clinics can be

regulated under the Commerce Clause power but, rather, to

ensure that Congress had a rational basis for that

conclusion. Parker, 108 F.3d at 30 (quoting Bishop, 6 F.3d

at 577). We hold that under Lopez and this Circuit's

precedent, FACE is a proper exercise of Congress's power to

regulate intrastate conduct that, in the aggregate, has a

substantial effect on interstate commerce.3

In United States v. Morrison, ___ U.S. ___, 120 S. Ct.

1740, 1749-52 (2000), the Supreme Court's most recent

communique on Lopez's third category of regulation, the

Court provided a framework to determine whether a law

_________________________________________________________________

3. Because we determine that FACE is a proper regulation of intrastate

activity that has a substantial effect on interstate commerce, we do not

reach the Attorney General's argument that FACE is also a proper

regulation of instrumentalities in commerce.

15

regulates an activity that has a substantial effect on

interstate commerce. The Court identified four relevant

considerations. These are: 1) the economic nature of the

regulated activity, see id. at 1750; 2) a jurisdictional

element limiting the reach of the law to a discrete set of

activities that additionally has an explicit connection with

or effect on interstate commerce, see id. at 1750-51; 3)

express congressional findings regarding the effects upon

interstate commerce of the activity in question, see id. at

1751; and 4) the link between the regulated activity and

interstate commerce, see id. at 1751.

Morrison first asks a court to consider whether the

federal law regulates intrastate economic or commercial

activity. See id. at 1750. In Morrison , the Supreme Court

noted, "In every case where we have sustained federal

regulation under Wickard's aggregation principle, the

regulated activity was of an apparent commercial

character." Id. Accordingly, in Morrison, the Supreme Court

invalidated the civil remedy provision of the Violence

Against Women Act ("VAWA"), in part, because gender-

motivated crimes "are not in any sense of the phrase,

economic activity." Id. at 1751. In contrast to gender-

motivated crime, the activity regulated by FACE-- the

physical obstruction and destruction of reproductive health

clinics and the intentional interference and intimidation of

persons obtaining and providing reproductive health

services -- is activity with an effect that is economic in

nature. Reproductive health clinics are income-generating

businesses that employ physicians and other staff to

provide services and goods to their patients. Motivated by

anti-abortion sentiment, the primary goal of individuals and

groups engaged in the misconduct prohibited by FACE is to

temporarily and permanently interrupt the operations of

reproductive health facilities and prevent individuals from

accessing their services. See S. Rep. No. 103-117, at 11;

H.R. Rep. No. 103-306, at 9, U.S.C.C.A.N., at 706.

Congress found that the violent and obstructive acts

directed at reproductive health facilities had caused

millions of dollars of damage and forced clinics to close,

caused serious and harmful delays in the provision of

medical services and intimidated a number of physicians

from offering abortion services. See S. Rep. No. 103-117, at

16

14; H.R. Rep. No. 103-306, at 7, U.S.C.C.A.N., at 704. The

effect of the conduct proscribed by FACE is to deter, and in

some cases to stop completely, the commercial activity of

providing reproductive health services. We thus hold that

although the connection to economic or commercial activity

plays a central role in whether a law is valid under the

Commerce Clause, we hold that economic activity can be

understood in broad terms. Pursuant to this principle,

unlike the activity prohibited by VAWA, the misconduct

regulated by FACE, although not motivated by commercial

concerns, has an effect which is, at its essence, economic.

See Weslin, 156 F.3d at 296 (threats of violence that have

the effect of deterring commercial activity is properly

regulated under commerce clause); Hoffman, 126 F.3d at

587 (activity regulated by FACE, while not itself economic

or commercial, "is closely and directly connected with an

economic activity . . . therefore . . . we cannot conclude that

FACE has nothing to do with commerce or any sort of

economic enterprise"); Dinwiddie, 76 F.3d at 921 ("FACE

prohibits interference with a commercial activity-- the

provision and receipt of reproductive health services.");

Cheffer, 55 F.3d at 1520 ("the Access Act does regulate

commercial activity, the provision of reproductive health

services.").

Morrison next instructs a court to consider the existence

of a jurisdictional element. 120 S. Ct. at 1750-51."A

jurisdictional element . . . refers to a provision in a federal

statute that requires the government to establish specific

facts justifying the exercise of federal jurisdiction in

connection with any individual application of the statute."

United States v. Rodia, 194 F.3d 465, 471 (3d Cir. 1999),

cert. denied, ___ U.S. ___, 120 S. Ct. 2008 (2000). FACE

does not contain an explicit jurisdictional element

establishing that the federal cause of action is in pursuance

of Congress's power to regulate interstate commerce.

Although such an element would certainly lend support to

the conclusion that FACE is tied to interstate commerce, we

conclude that it was not necessary for Congress explicitly to

limit the civil remedy provision in the case of regulating

anti-abortion activity directed at reproductive health clinics

that are, by definition, directly engaged in the business of

providing reproductive health services. See Bird , 124 F.3d

17

at 675 (reasoning that a jurisdictional element is"not

always a necessary" method to ensure that Congress does

not exceed its commerce power).

Morrison also directs that the existence of congressional

findings on the burden of the regulated activity on

interstate commerce "may enable [a court] to evaluate the

legislative judgment that the activity in question

substantially affects interstate commerce." Morrison, 120 S.

Ct. at 1752 (quoting Lopez, 514 U.S. at 563). Congress's

conclusion that the activity proscribed by FACE burdens

interstate commerce is a conclusion derived from months of

legislative hearings, research, and debate. The Senate

Judiciary Committee and the House Committee on Labor

and Human Resources which considered the legislation

before it became law submitted extensive reports on the

necessity of FACE. See Bird, 124 F.3d at 678. Thus,

Congress's conclusion that FACE is constitutional is

entitled to judicial deference. See Parker, 108 F.3d at 29.

Finally, in accordance with the fourth factor of Morrison,

the findings set forth in the House and Senate Committee

Reports demonstrate that Congress had a rational basis

upon which to conclude that the activities governed by

FACE have a substantial effect on interstate commerce. As

set out in detail below, the findings show that a national

market for abortion-related services exists in this country

and that reproductive health clinics are directly engaged in

interstate commerce. The findings further demonstrate that

a national movement engaged in the activities proscribed by

FACE has decreased the availability of abortion-related

services in the national market and caused women seeking

services and physicians providing services to travel

interstate. Accordingly, the activity proscribed by FACE has

a substantial effect on the interstate commerce of

reproductive health services.

The legislative record establishes that a shortage of

abortion-related services exists in this country that is

exacerbated by the misconduct proscribed by FACE. See S.

Rep. No. 103-117, at 17. Only 17 percent of counties in the

United States have an abortion provider. See H.R. Rep. No.

103-306, at 8, U.S.C.C.A.N., at 705. This leaves 83 percent

of counties without a physician willing to perform

18

abortions. See S. Rep. No. 103-117, at 17 & n.29. The

shortage is most severe in rural counties because

reproductive health clinics are located primarily in

metropolitan areas, leaving women residing in rural areas

without a provider of these services. See H.R. Rep. No. 103-

306, at 8, U.S.C.C.A.N., at 705. In a rural community, only

one provider usually exists in a large geographical area,

thus making it a preferred target for anti-abortionists

because elimination of that provider eliminates abortion

services for all women in that area. See H.R. Rep. No. 103-

306, at 8, U.S.C.C.A.N., at 705.

The shortage of abortion-related services has resulted in

a national market for these services because many of the

patients must engage in interstate commerce by traveling

from one state to obtain reproductive health services in

another. Testimony and evidence before Congress showed

that substantial numbers of women travel interstate to seek

the services of reproductive health clinics. See S. Rep. No.

103-117, at 31; H.R. Rep. No. 103-603, at 6, U.S.C.C.A.N.,

at 703. Many patients travel over 100 miles to their

appointments. See S. Rep. No. 103-117, at 17 & n.29. For

one example, Ms. Sylvia Doe, who testified before Congress

that after learning her baby suffered from a permanent

disability that would cause its early death, traveled from

Virginia to a clinic in Kansas capable of performing the

procedure she required. See H.R. Rep. No. 103-306, at 7-8,

U.S.C.C.A.N, at 704-5. Furthermore, the Senate found that

44 percent of the patients treated at a clinic in Wichita, KS,

are from out of state. See S. Rep. No. 103-117, at 31.

Congress's determination that reproductive health services

are an interstate market was well supported by the

testimony presented to the committees. See Bird , 124 F.3d

at 668-79 (setting forth a summary of testimony).

In addition, reproductive health clinics employ a national

market of physicians and staff. Because of the shortage of

physicians willing to perform abortions in the age of clinic

violence, doctors employed at reproductive health clinics

often travel across state lines to provide abortion services.

See S. Rep. No. 103-117, at 31 & n.46. "Some doctors

traveled to several states, some for hundreds of miles, to

perform abortions at clinics which had no physicians of

19

their own." Id. For example, in South Dakota the only

physician who performs abortions commutes from

Minnesota and provides abortion services in Minnesota,

Montana, North Dakota, and parts of Canada. See id. at

16-17 & n. 29, 31.

The Senate Committee also concluded that reproductive

health clinics engage in interstate commerce. The

Committee reported that

Clinics and other abortion service providers clearly are

involved in interstate commerce, both directly and

indirectly. They purchase medicine, medical supplies,

surgical instruments and other necessary medical

products, often from other States; they employ staff;

they own and lease office space; they generate income.

In short, the Committee finds that they operate within

the stream of interstate commerce.

S. Rep. No. 103-117, at 31. Thus, Congress found that a

national market existed for reproductive health services

because of the shortage of physicians who provide abortion-

related services, that reproductive health clinics often

employ physicians from outside the state in which they are

located, and reproductive health clinics themselves are

engaged in interstate commerce.

Finally, Congress determined that the conduct prohibited

by FACE inhibits and prohibits the delivery of reproductive

health care services in the national market. Based on the

testimony and evidence before it, Congress found that the

clinic blockades, the threats against employees, and the

other violent and obstructive activities prohibited by FACE

have the single goal of eliminating the practice of abortion

by closing abortion clinics. See S. Rep. No. 103-117, at 11;

H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at 703.

Congress also, based on the evidence before it, rationally

determined that the national movement was succeeding.

The House Report stated that the "campaign of violence has

led to death, injury, harassment, fear, and thousands of

arrests all across the nation. It has resulted, as intended,

in access to the constitutionally protected right to choose

being denied to thousands of women nationwide against

their will." H.R. Rep. No. 103-306, at 6, U.S.C.C.A.N., at

20

703. The Senate Report states that clinic blockades and

violent protests proscribed by the Act have "a significant

adverse impact not only on abortion patients and providers,

but also on the delivery of a wide range of health care

services." S. Rep. No. 103-117, at 14. The effect of the

violence forced "clinics to close, caused serious and harmful

delays in the provision of medical services, and increased

health risks to patients." Id.

Furthermore, when FACE was enacted, millions of dollars

of damage had been caused to these facilities by the clinic

blockades. See H.R. Rep. No. 103-306, at 7, U.S.C.C.A.N.,

at 704. The damage caused to reproductive health care

facilities eliminates on a temporary or permanent basis the

reproductive health care services that are provided by the

facilities. See id. at 9, U.S.C.C.A.N., at 706. Thus, the

activities proscribed by FACE inhibit the operation of

entities that are directly engaged in interstate commerce.

Congress explicitly noted the link between the abortion-

related violence and the shortage of physicians willing to

perform abortions. A number of physicians and health care

personnel have been intimidated by the threats of violence

made to them and their families and have stopped

providing their services, thus contributing to the shortage

of providers. The House Committee found that rural clinics

and doctors have become the preferred targets for abortion

foes because elimination of that single provider effectively

eliminates service for many women. See id. at 8,

U.S.C.C.A.N., at 705. The Senate Committee also reported

that the violence "has . . . taken a severe toll on providers,

intimidated some into ceasing to offer abortion services,

and contributed to an already acute shortage of qualified

abortion providers." S. Rep. No. 103-117, at 14.

Specifically, "some providers have succumbed to the

intimidation and threats." Id. at 17. At least three

physicians in Dallas stopped performing abortions in 1992

as a result of pressure by an anti-abortion group, two

doctors stopped working in 1993 after receiving death

threats, and since Dr. Gunn, an abortion-provider in

Florida, was shot in 1993, at least eight more doctors have

stopped offering abortion services. See id. at 16-17. The

House Committee also reported that the shortage of

21

abortion providers is "at least partially attributable to the

violence and intimidation described in this report. Doctors

understandably are leaving the field, and new graduate[s]

have little desire to enter the field even as part of a wider

obstetrics/gynecology practice." H.R. Rep. No. 103-306, at

8, U.S.C.C.A.N., at 705.

Moreover, although under Lopez Congress may regulate

intrastate activity that in the aggregate has an effect on

interstate commerce, the anti-abortion movement itself

whose conduct is regulated by FACE is national in scope.

Congress found that many of the activities were organized

and directed across state lines. See S. Rep. No. 103-117, at

13, 14 & n.26; H.R. Rep. No. 103-306, at 9, U.S.C.C.A.N.,

at 706. The House reported that a national strategy has

emerged, orchestrated by anti-abortion leaders. See H.R.

Rep. No. 103-306, at 9, U.S.C.C.A.N., at 706. Congress

found that the conduct regulated by FACE was beyond the

control of local and state authorities. Thus, when it enacted

FACE, Congress sought to regulate a truly national

problem.

In sum, due to the acute shortage of abortion-related

services in this country and the resulting national market

for abortion-related services, the conduct proscribed by

FACE -- the commission of blockades and other acts of

violence -- has a substantial effect on the availability in

interstate commerce of reproductive health services. The

effect of the misconduct is to deter physicians from

providing further services and temporarily and permanently

to shut down reproductive health clinics, thus forcing large

numbers of women to travel across state lines to obtain

services. We, thus, must agree with the testimony before

the Senate that,

the shift of demand for abortion services from those

areas where clinic access is obstructed to those areas

where it is not represents the sort of interstate

commerce effect that is beyond the effective control of

any one state and is accordingly a proper subject for

congressional regulation under the Commerce Clause.

22

Bird, 124 F.3d at 681 (quoting Senate Hearings, at 97

(statement of Professor Tribe)).4

Our determination that FACE regulates activity that has

a substantial effect on interstate commerce is supported by

Supreme Court cases young and old. Recently, in Jones v.

United States, ___ U.S. ___, 120 S. Ct. 1904, 1909 (2000),

the Supreme Court considered whether the arson of an

owner-occupied residence not used for any commercial

purposes qualified as arson of property used in interstate

commerce within the meaning of the federal arson statute.

The Court held that arson of a private dwelling was beyond

the reach of federal commerce power to criminalize arson.

See id. at 1911. To determine, however, whether the arson

of a particular facility is a commerce-affecting act, the

Court instructed that "[t]he proper inquiry .. . is into the

function of the building itself, and then a determination of

whether that function affects interstate commerce." Id. at

_________________________________________________________________

4. We respectfully register our disagreement with the dissent. The

dissent characterizes the connection between clinic blockades and

interstate commerce as the same attenuated "but-for-causal chain"

between gender-motivated crimes and interstate commerce rejected by

the Court in Morrison. This view narrowly focuses on the activity

regulated by FACE in the abstract and fails to acknowledge the national

market for reproductive health services in this country. Congress

determined that the abortion provider shortage in the United States has

resulted in a national market for abortion services. In this context,

abortion-related violence committed to close down a reproductive health

clinic or deter a woman from accessing its services has a direct effect on

interstate commerce. Abortion-related violence in the specific context of

a national market for reproductive services simply cannot be compared

to gender-motivated crime -- the activity regulated by VAWA. Given the

national market for abortion services, the nexus between the activity

regulated by FACE and interstate commerce is direct.

The dissent also relies on a comparison of anti-abortion violence to

rape, robbery, and trespass to conclude that anti-abortion violence is a

local problem properly regulated by the anti-abortion movement. This

comparison fails to acknowledge the motivation of the anti-abortion

movement. Although the individual tactics of anti-abortion activists may

have similar characteristics as common law crimes, the comparison ends

there. As Congress found, the anti-abortion movement targets

specifically a branch of commerce that operates in a national market.

Hence, anti-abortion violence is a national, rather than a local, problem.

23

1910. Here, the facilities blockaded and temporarily or

permanently closed by the activities of anti-abortion

protestors are businesses that provide reproductive health

services and are directly involved in interstate commerce.

Thus, under the functionality test provided in Jones, the

blockading and destruction of reproductive health clinics,

just like the arson of a commercial building, is a commerce-

affecting activity and therefore properly regulated by

Congress.

In Atlanta Motel v. United States, 379 U.S. 241, 250-58

(1964), the Supreme Court upheld Title II of the Civil Rights

Act of 1964 as a proper regulation of an activity that affects

commerce. The holding was premised on the conclusion

that discrimination in restaurants results in serving fewer

customers, therefore adversely affecting interstate

commerce. Here, given Congress's specific findings that

there exists a national market for reproductive health

services suffering from a shortage in services, the effect of

temporarily and permanently shutting down reproductive

health clinics that are often frequented and staffed by

people crossing state lines has a direct effect on interstate

commerce under the reasoning presented in Atlanta Motel.

In sum, we conclude that the activity regulated by FACE

is economic in nature. We further determine that due to the

national nature of reproductive health services and anti-

abortion protests, the civil penalty provision is within the

boundaries of Congress's power to regulate interstate

commerce. Applying the deference that is due Congress's

findings, see Parker, 108 F.3d at 30-31, we further

conclude that, unlike the statutes reviewed in Lopez and

Morrison, FACE regulates conduct that Congress had a

rational basis to conclude has a direct and substantial

effect on interstate commerce. We hold, therefore, that

FACE falls within the scope of congressional authority

under the Commerce Clause as a legitimate regulation of

activity having a substantial effect on interstate commerce.

B. First Amendment.

Finally, we join the decisions of the courts of appeals that

FACE does not regulate speech and expression protected by

the First Amendment. See Hart, 212 F.3d at 1071-73;

24

United States v. Balint, 201 F.3d 928, 934-36 (7th Cir.

2000); Weslin, 156 F.3d at 296-98; United States v. Wilson,

154 F.3d 658, 662-64 (7th Cir. 1998), cert. denied, 525

U.S. 1081 (1999); Hoffman, 126 F.3d at 588-89; Bird, 124

F.3d at 683-84; Terry, 101 F.3d at 1418-22; Soderna, 82

F.3d at 1374-77; Dinwiddie, 76 F.3d at 921-24; Cheffer, 55

F.3d at 1521-22. These courts have thoroughly addressed

the arguments presented by Defendants in this case and we

are in full agreement with their decisions. For this reason,

we do not expound on our analysis of these claims.

Defendants first argue that FACE is a view-point based

restriction on speech and expressive conduct that is

protected under the First Amendment. FACE is not view-

point based. The language of the statute and the legislative

history demonstrates that FACE governs all individuals and

groups that obstruct the provision of reproductive health

services and religious worship. The purpose of FACE was to

protect clinics, their staff, and patients from the harm

suffered when their right to provide and receive

reproductive health services was interfered with. The law

applies equally to all who interfere with the provision of

these services, regardless of the motivation for the conduct.

See Weslin, 156 F.3d at 296-97; Dinwiddie, 76 F.3d at 923;

see also Pro-Choice Network of Western New York v.

Schenck, 67 F.3d 377, 386 (2d Cir. 1995) (en banc), aff 'd

in part, 519 U.S. 357 (1996) (holding that because the

purpose of an injunction enjoining a group of anti-abortion

protestors was to prevent the harm that prospective

patients would suffer if the anti-abortionists' activities

continued, the injunction was content neutral). Thus,

Congress did not pass FACE because of disagreement with

the message of anti-abortionists. Accord Hill v. Colorado,

120 S. Ct. 2480 (2000) (holding Colorado law that makes it

unlawful for any person within 100 feet of a health care

facility's entrance to knowingly approach within eight feet of

another person without that person's consent is a content-

neutral restriction). Because FACE prohibits conduct

regardless of the view-point of the actor, FACE does not

discriminate on the basis of content.

Furthermore, FACE, which is view-point neutral, governs

conduct not speech. See Terry, 101 F.3d at 1418-19;

25

5. Defendants also argue that because the Attorney General described

the actions of lawful protesters in its appellate brief, FACE, as applied

in

this case, is unconstitutionally vague and overbroad. This argument is

without merit.

Hoffman, 126 F.3d at 588; Cheffer, 55 F.3d at 1521. By its

very terms, FACE regulates "force," "threat[s] of force," or

"physical obstruction." 18 U.S.C. S 248(a). Activities that

injure, threaten, or obstruct are not protected by the First

Amendment, whether or not such conduct communicates a

message. See Wilson, 154 F.3d at 663; Terry, 101 F.3d at

1418-19. Although the conduct may have "expressive

components," this does not exempt it from governmental

prohibition. Weslin, 156 F.3d at 297. We hold that FACE is

a valid restriction of conduct that has an expressive

component under the three-part test in United States v.

O'Brien, 391 U.S. 367, 376-82 (1968). FACE serves the

important governmental interest in ensuring public safety

and a woman's right to seek reproductive health services;

this interest is unrelated to the suppression of free speech;

and FACE is narrowly tailored to meet these ends. See

Weslin, 156 F.3d at 297-98; Terry, 101 F.3d at 1419-20.

FACE is therefore constitutional under O'Brien .

Accordingly, we hold that FACE is constitutional under the

First Amendment.5

CONCLUSION

Therefore, we conclude that compensatory statutory

damages under FACE are properly awarded per violation

and jointly and severally among defendants who

participated in the violation. Furthermore, we join our

sister circuits and hold that FACE is a constitutional

exercise of Congress's commerce power and does not violate

the First Amendment. The District Court is affirmed.

26

WEIS, Circuit Judge, Dissenting.

Were I to reach the damages issue in this case, I would

agree with the majority's conclusion that defendants are

liable on a joint and several basis per incident, and not per

individual. Obviously, if the government had sought actual

damages, it would have been restricted to recovering an

amount proven at trial, and that sum could be recovered

only once. The fact that Congress provided for statutory

damages as an alternative to establishing the actual loss

does not change the nature of the compensation, nor make

it cumulative.

However, I differ with the majority in its conclusion that

FACE survives constitutional scrutiny. I am aware that

seven Courts of Appeals have upheld the constitutionality

of the Act. Some of these decisions were made over dissents

arguing that FACE could not be sustained under the

analysis in United States v. Lopez, 514 U.S. 549 (1995).

Although the Courts of Appeals opinions considered Lopez,

they essentially treated it as a narrow holding that did not

affect measures such as FACE.

Doubts that Lopez had application beyond its unique

factual setting, however, were dissipated by the expansive

holding in United States v. Morrison, 120 S. Ct. 1740

(2000). There, the Court revisited the question of Congress'

power under the Commerce Clause to legislate on matters

traditionally within the province of the States. Setting aside

portions of the Violence Against Women Act, the Court

wrote that "[w]e accordingly reject the argument that

Congress may regulate non-economic, violent criminal

conduct based solely on that conduct's aggregate effect on

interstate commerce. The Constitution requires a

distinction between what is truly national and what is truly

local." Id. at 1754. Continuing, the Court said, "we can

think of no better example of the police power, which the

Founders denied the National Government and reposed in

the States, than the suppression of violent crime and

vindication of its victims." Id.

Together, Lopez and Morrison mandate limits to the

federalization of local crime under the aegis of the

Commerce Clause. FACE, like the Gun-Free School Zones

27

Act and the Violence Against Women Act, is an example of

congressional intrusion into criminal law traditionally

within the province of the States. These statutes are similar

in that "neither the actors nor their conduct has a

commercial character, and neither the purposes nor the

design of the statute[s] has an evident commercial nexus."

Lopez, 514 U.S. at 580 (Kennedy, J., concurring).

Considered alone, these statements clearly raise the

likelihood that FACE is unconstitutional. Upon more

detailed review, it becomes clear that Morrison permits no

other conclusion.

As the majority here observes, the Supreme Court has

identified three categories of activities that Congress may

regulate under the Commerce power: first, the use of

channels of interstate commerce; second, the

instrumentalities of interstate commerce or persons or

things in interstate commerce, even though the threat may

come only from intrastate activity; and third, activities that

substantially affect interstate commerce. Morrison, 120 S.

Ct. at 1749. No contention has been made that thefirst

category is involved here, and the Courts of Appeals that

have considered the constitutionality of FACE have

generally upheld the Act under the third category. For this

reason, I will begin with a discussion of that point.

I. Regulation of Activities

Having a Substantial Relation To Interstate Commerce

In determining whether Congress may properly regulate

an activity under the third Commerce Clause classification,

Lopez and Morrison present considerations that can be

distilled into the following four questions:

1) Is the activity of an apparent commercial character;

2) Does the statute contain an express jurisdictional

element that may establish a connection with interstate

commerce;

3) Are there congressional findings that illuminate a

reasonable legislative judgment that the activity

28

substantially affects interstate commerce, although

such an effect is not "visible to the naked eye"; and

4) Is there a link between the activity and a substantial

effect on interstate commerce that is not so attenuated

that the federal-state balance is destroyed?

See Morrison, 120 S. Ct. at 1749-52 & n.4; Lopez, 514 U.S.

at 559-68. These considerations will be examined in turn.

A. The Activity is Not Commercial

FACE is drafted to prohibit specific conduct outside

reproductive health clinics. It provides in relevant part:

(a) Prohibited activities. -- Whoever --

(1) by force or threat of force or by physical

obstruction, intentionally injures, intimidates or

interferes with or attempts to injure, intimate or

interfere with any person because that person is or

has been, or in order to intimidate such person or

any other person or any class of persons from,

obtaining or providing reproductive health services;

. . . .

(3) intentionally damages or destroys the property of

a facility, or attempts to do so, because such facility

provides reproductive health services . . .

shall be subject to the penalties provided in subsection

(b) and the civil remedies provided in subsection (c)

. . . .

18 U.S.C. S 248.

The services provided by abortion clinics are clearly

commercial in nature, conducted as they are in exchange

for money. But these services are not the activities targeted

by the legislation. FACE prohibits third parties from

interfering with patients and staff entering abortion clinics,

as well as from inflicting damage to the property itself. By

its plain language, the statute is directed against the

conduct of those external to a clinic's operations.

As the proscribed activity, a protestor's conduct does not

involve a purchase, sale, or any exchange of value in return

29

for the rendering of a service, and cannot in any sense be

deemed economic or commercial in character. Although

blockades may reduce a clinic's revenue, the prohibited

conduct is fundamentally criminal in nature and does not

fit easily within the category of commercial activity.

The fact that criminal conduct may also have financial

effects does not transform that activity into one commercial

in nature. Murder and robbery have monetary

consequences, but that does not transform criminal codes

into commercial regulation. Morrison made it clear that the

nature of the activity to be restricted is determined by an

examination of the conduct itself, and not by such external

factors as financial effects, which are one step removed

from the statute's focus. Morrison, 120 S. Ct. at 1750.

In both Lopez and Morrison, thefinancial effects of the

prohibited conduct were not disputed. Justice Breyer

outlined in his Lopez dissent the "obvious" links between

the economy and gun violence. Lopez, 514 U.S. at 619-22

(Breyer, J., dissenting). Justice Souter's dissent in Morrison

cited a Senate report from the legislative history that

estimated the impact of violent crimes against women to be,

at minimum, $3 billion annually. Morrison, 120 S. Ct. at

1762 (Souter, J., dissenting). The Court nonetheless

concluded in Lopez that the Gun-Free School Zones Act

was "a criminal statute that by its terms has nothing to do

with `commerce' or any sort of economic enterprise," Lopez,

514 U.S. at 561, and said in Morrison that"[g]ender-

motivated crimes of violence are not, in any sense of the

phrase, economic activity." Morrison, 120 S. Ct. at 1751.

It is apparent that the Court examined the prohibited

conduct without reference to its economic effects. Courts

reviewing FACE should employ a similarly disciplined

analysis.

When considering the limits of congressional power, the

Court has adopted a "practical conception of commercial

regulation." Lopez, 514 U.S. at 574 (Kennedy, J.,

concurring); see also Morrison, 120 S. Ct. at 1750 (quoting

Lopez). But to sustain FACE, courts must reject that

concept. The statute does not resemble a commercial

regulation, but instead a typical exercise of a state's police

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power: prohibiting trespass, intimidation, and violence; and

providing criminal sanctions as well as injunctions.

The threshold inquiry articulated in Lopez and repeated

in Morrison is consistent with the Court's prior Commerce

Clause decisions. As the Court wrote, "thus far in our

Nation's history our cases have upheld Commerce Clause

regulation of intrastate activity only where that activity is

economic in nature." Morrison, 120 S. Ct. at 1751. Two

cases cited by the Court in that context provide a useful

contrast to the present dispute.

In Heart of Atlanta Motel, Inc. v. United States , 379 U.S.

241, 261-62 (1964), and the parallel case of Katzenbach v.

McClung, 379 U.S. 294, 305 (1964), the Court upheld

legislation requiring hotels and restaurants to make

accommodations open to black patrons as well as white.

The regulated enterprises were clearly within Morrison's

definition of economic activity. It was the hoteliers and

restauranteurs themselves, in the operation of their

business, who had to alter their conduct in order to comply

with the law. The legislation did not apply to third parties

whose conduct may or may not have been commercial.

FACE does not in any way control the operation of a

clinic in its procedures or selection of patients. That

distinction, as well as the lack of a jurisdictional element,

separates FACE from the Civil Rights legislation upheld in

Heart of Atlanta and Katzenbach.

To cavalierly dismiss the traditional distinctions between

criminal and commercial conduct is to "downplay the role

that the economic nature of the regulated activity plays in

our Commerce Clause analysis." Morrison, 120 S. Ct. at

1750. Both Lopez and Morrison made the inquiry into

commercial character a key element to their holdings. In

the present case, the only reasoned answer to the question

of whether the blockading is commercial in character must

be in the negative.

B. The Act Contains No Jurisdictional "Hook"

A jurisdictional element in a statute serves to define the

limits of the regulated activity. Including such a

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requirement assures that the legislation is directed toward

a defined scope of conduct, one more apt to be within the

reach of the commerce power granted to Congress. See

United States v. Bishop, 66 F.3d 569, 594 (3d Cir. 1995)

(Becker, Ch.J., concurring in part and dissenting in part).

A statutorily required proof of connection with interstate

commerce mandates a case-by-case inquiry.

Stressing the redemptive power of such an element, the

Court in Lopez discussed United States v. Bass, 404 U.S.

336 (1971), where it circumspectly read federal gun

legislation to require a nexus with interstate commerce.

Lopez, 514 U.S. at 562. In Bass, the Court chose to avoid

a potential constitutional infirmity in this fashion because

" `unless Congress conveys its purpose clearly, it will not be

deemed to have significantly changed the federal-state

balance.' " Id. (quoting Bass, 404 U.S. at 349). Similarly,

Jones v. United States, 120 S. Ct. 1904, 1908, 1910 (2000),

carefully interpreted an arson statute so as not to apply to

all private residences and thus avoided the constitutional

issues, despite interstate connections in the forms of a

mortgage, an insurance policy and the use of natural gas.

But in FACE, there is no such ambiguity. Indeed, it

appears that Congress simply sought to extend a"remedy

over a wider, and more purely intrastate, body of violent

crime." Morrison, 120 S. Ct. at 1752. Without a

jurisdictional clause to provide a case-by-case limitation,

the Act's reach becomes vulnerable to a Constitutional

challenge.

Because FACE lacks the jurisdictional element, the

government in this case was not required to establish any

connection with interstate commerce. It was not necessary

to show that interstate travel was hindered or affected, that

equipment or furnishings were purchased in interstate

commerce, or that any of the other jurisdictional indicia

that have been used in statutes that have passed

constitutional muster were satisfied. All that the

government had to show was that a clinic, even if a purely

local enterprise, was being blockaded. The prosecutor thus

had almost unlimited discretion to intervene in a purely

local disturbance.

32

The preservation of the constitutional allocation of power

between state and federal governments is a serious concern

for both the legislative and judicial branches. Including a

jurisdictional requirement in a statute is one way Congress

can demonstrate that it recognizes this important issue and

has acted in light of that knowledge.

The absence of a jurisdictional clause in FACE is a fatal

flaw, one that is not cured by the congressionalfindings

that will be discussed next.

C. The Legislative Findings Are Inadequate

Unlike Lopez, but like Morrison, FACE's legislative history

contains congressional findings. As a result of hearings,

Congress alleged in Committee reports and in floor debates

that patients and doctors travel interstate for abortions;

that local authorities were sometimes unable to control

violence at abortion clinics; and that obstructionist tactics

had caused losses in the millions of dollars, caused clinics

to close, and had intimidated physicians as well as

patients. Based on anecdotal evidence, Congress decided

that federal intervention authorized by the Commerce

Clause and section 5 of the Fourteenth Amendment was

appropriate.

On several occasions, we have said that congressional

findings are entitled to judicial deference and that it is not

our role to " `second-guess the legislative judgment of

Congress.' " United States v. Parker, 108 F.3d 28, 30 (3d

Cir. 1997) (quoting Bishop, 66 F.3d at 577). Accordingly, all

that was required of a reviewing court was to ensure that

Congress had a rational basis for its legislation. Id.

However correct that approach may be in other settings,

it can no longer be said that such substantial deference is

due in cases assessing the limits of congressional power

under the Commerce Clause. In Morrison, the Court stated

that "the existence of congressional findings is not

sufficient, by itself, to sustain the constitutionality of

Commerce Clause legislation." Morrison, 120 S. Ct. at 1752.

Whether the effect upon interstate commerce is substantial

enough to make Congress' exercise of power under the

33

Commerce Clause appropriate "is ultimately a judicial

rather than a legislative question." Id.

As the basis for concluding that blockades have a

substantial effect upon interstate commerce, Congress

reasoned that obstructions that deter patients from going to

a clinic caused diminished business for the enterprise. In

some cases, when clinics closed, women were required to

travel, perhaps interstate, to obtain the services of another

establishment.

This is the very same "but-for causal chain" of logic that

the Court explicitly rejected in Morrison. Id. at 1752-53. If

every attenuated effect upon interstate commerce stemming

from an occurrence of violent crime satisfied the

substantial effects test, then Congress could "regulate any

crime as long as the nationwide, aggregated impact of that

crime has substantial effects on employment, production,

transit, or consumption." Id.

The opinions of the Courts of Appeals that have upheld

FACE all rely heavily on the legislative history for

concluding that a substantial effect on interstate commerce

existed. See United States v. Weslin, 156 F.3d 292, 296 (2d

Cir. 1998); United States v. Bird, 124 F.3d 666, 678 (5th

Cir. 1997); Terry v. Reno, 101 F.3d 1412, 1415-16 (D.C.

Cir. 1996); United States v. Dinwiddie, 76 F.3d 913, 920-21

(8th Cir. 1996); United States v. Wilson, 73 F.3d 675, 681

(7th Cir. 1995); Cheffer v. Reno, 55 F.3d 1517, 1520-21

(11th Cir. 1995); American Life League v. Reno , 47 F.3d

642, 647 (4th Cir. 1994). But these decisions are undercut

by Morrison. With the asserted justifications

constitutionally infirm, the legislative history does little to

demonstrate a reasonable congressional judgment that the

prohibited activity substantially affects interstate

commerce.

D. Any Link is Too Attenuated

As was said in Lopez, "[i]n a sense any conduct in this

interdependent world of ours has an ultimate commercial

origin or consequence, but we have not yet said the

commerce power may reach so far. If Congress attempts

that extension, then at the least we must inquire whether

34

the exercise of national power seeks to intrude upon an

area of traditional state concern." Lopez, 514 U.S. at 580

(Kennedy, J., concurring). Any supposed link between the

proscribed conduct in FACE and interstate commerce, if

one exists, would be so attenuated that it could be used to

also justify a general federal police power.

Even assuming that some of the surgical instruments,

medications, furnishings and equipment were in interstate

commerce at some point, such a connection is so nebulous

that it provides no useful boundary under the Commerce

Clause. According to Morrison, allowing such remote factors

to govern constitutional limitations would allow Congress to

"completely obliterate the Constitution's distinction between

national and local authority." Morrison, 120 S. Ct. at 1752.

Persons seeking to block access to abortion clinics may

be a national problem, but in that sense, rape, robbery and

trespass present national concerns as well. Being a mere

commonality of the several States does not justify federal

regulation of these matters under the auspices of interstate

commerce.

The conduct at issue here -- blocking access to a

building and verbally intimidating those who attempted to

enter -- is a quintessentially local problem. Despite that

obvious and inescapable fact, the federal government chose

to use its resources where they were neither required nor

appropriate.

Because the prohibited activity has no commercial

character and no jurisdictional element need be proved, the

statute as drafted impermissibly extends federal jurisdiction

over conduct that is purely and simply intrastate and has

no relationship in any substantial manner to interstate

commerce. Without a jurisdictional prerequisite, FACE

leaves the federal government free to intrude into a state's

sovereign duty to maintain order in any abortion clinic-

related disturbance, no matter how trivial.

Contrary to the congressional findings, here there was no

abdication of responsibility by state authorities. A state

court had issued an injunction against obstructing entry to

the clinic. On each of the three occasions when the conduct

occurred, the local police intervened, arrested protesters,

35

and filed state criminal charges. All of the blockades were

controlled by local authorities, including the last one, which

caused the local police to seek assistance from neighboring

municipalities. The only reported injuries were the result of

one demonstrator kicking and head-butting a police officer.

From the standpoint of local law enforcement personnel,

the conduct that FACE addresses is not extraordinary, but

is akin to disturbances following a high school game

between bitter rivals, where fans demonstrate their loyalty

in mass unruly gatherings. Celebrations by fans of Super

Bowl champions frequently require intervention by city

police to maintain order and protect property (some of it

undoubtedly in interstate commerce). Near riots at rock

concerts by performers who have traveled interstate are

routinely controlled by local police forces. Many of the same

arguments used to justify FACE could be used to federalize

criminal conduct of this nature, despite the competence

state authorities have demonstrated over the years. 1

It is difficult to understand why the federal government

invoked FACE when local authorities had the situation well

in hand. Duplication of state and federal injunctions wastes

judicial resources and leads to uncertainty and confusion.

Moreover, overlapping of enforcement authority is

detrimental to the federal system and the liberties it

secures. "[C]itizens must have some means of knowing

which of the two governments to hold accountable for the

failure to perform a given function. `Federalism serves to

assign political responsibility, not to obscure it.' " Lopez,

514 U.S. at 576-77 (Kennedy, J., concurring) (quoting FTC

v. Ticor Title Ins. Co., 504 U.S. 621, 636 (1992)). When

overlapping occurs, the lines drawn by federalism are

blurred and the "resultant inability to hold either branch of

the government answerable to the citizens is more

dangerous even than devolving too much authority to the

remote central power." Id. at 577 (Kennedy, J., concurring).

_________________________________________________________________

1. Where state officials are unable to adequately control disturbances

with their own resources, 42 U.S.C. S 10501 allows officials to petition

the Attorney General for assistance from the federal law enforcement

community.

36

FACE is a glaring example of the federalization of local

criminal law that is fatally flawed in its implementation

because it regulates activities with no commercial

character. The statute contains no jurisdictional element

which might cabin its operation within the confines of the

Commerce Clause, and the congressional findings fail to

provide the necessary justification for federal intrusion into

local law enforcement.

II. Instrumentalities of Interstate Commerce

The government also argues that FACE may be sustained

under the second category noted by the Supreme Court--

protection of the instrumentalities of interstate commerce

or persons or things in interstate commerce. The Court of

Appeals in United States v. Bird, 124 F.3d 667, 674 (5th

Cir. 1997) concluded that FACE was not sustainable under

this second category because no evidence was submitted at

trial to support such a conclusion. The Court in Terry v.

Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996) simply noted

that only the third category was relevant to the case before

it.

The Court of Appeals in United States v. Dinwiddie, 76

F.3d 913, 919-20 (8th Cir. 1996), considered this second

category, observing that the clinic in that case was located

in a metropolitan area straddling two states. Because of

this, a number of patients and staff members did not live

in Missouri where the clinic was located, and therefore,

traveled interstate to reach it. Id. On that basis, the court

concluded that the statute protected people and business

in interstate commerce and so was within Congress' power

to enact under the second category. Id. 2

_________________________________________________________________

2. It is interesting, but not determinative, that in Dinwiddie, the record

established the interstate travel of a doctor and some patients. No such

findings were made in the case before us. In any event, the Dinwiddie

evidence would not cure the facial deficiency in the text of the Act

itself.

As a criminal statute, it must give notice of the nature of the conduct

proscribed, United States v. Harriss, 347 U.S. 612, 617 (1954), including

jurisdictional facts that must be proved. The fact that the prosecution

produces evidence that could satisfy a hypothetical jurisdictional

element cannot cure the lack of the material element in the statute

itself.

37

Dinwiddie, however, failed to consider the significance of

the lack of a jurisdictional hook in FACE, although such

absence was a factor in Lopez. It is noteworthy that the two

cases cited by the Dinwiddie court to support its holding

that the clinic was "in interstate commerce" were based on

statutes that did contain jurisdictional limitations. E.g.,

United States v. American Bldg. Maint. Indus., 422 U.S.

271, 275-76 (1975) (Clayton Act); United States v.

Robertson, 514 U.S. 669, 670 (1995) (RICO).

I am not persuaded that a purely local commercial

service that is frequented by nearby but out-of-state

patrons is within the scope of the Commerce Clause

without the saving grace of a jurisdictional clause. See

Morrison, 120 S. Ct. 1752 n.5.

It is significant that in Lopez, the cases cited in support

of the commerce power under the second category involved

such matters as the Safety Appliance Act as applied to

railroad cars used in intrastate and interstate commerce,

Southern Ry. Co. v. United States, 222 U.S. 20, 24 (1911),

and fixing intrastate railroad fees that affect interstate

rates. Shreveport Rates Cases, 234 U.S. 342, 345 (1914).

Other examples cited by the Supreme Court include

destruction of an aircraft or thefts from interstate

shipments. Perez v. United States, 402 U.S. 146, 150

(1971). None of these situations approaches the broad

sweep of FACE, which, it must be said again, lacks any

jurisdictional limitation to restrict its application to those

matters demonstrably in interstate commerce.

III. Fourteenth Amendment

The government also attempts to sustain the statute as a

valid exercise of congressional power under the Fourteenth

Amendment. Morrison provides a short answer to that

contention. The Fourteenth Amendment applies to the

states, and like the Violence Against Women Act, FACE is

directed at private conduct where there is no indication of

state action. Morrison, 120 S. Ct. at 1756. FACE, therefore,

cannot be sustained under the Fourteenth Amendment.

38

I conclude that FACE is unconstitutional under both the

Commerce Clause and the Fourteenth Amendment. The

judgments in this case should be set aside.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

39