Appeal Court Turns Victory Into Defeat for Foes of Abortion

In a ruling that one lawyer suggested could alter anti-abortion protesters’ tactics, the 9th U.S. District Court of Appeals on Friday overturned a 1987 decision stating that protesters’ First Amendment rights were violated when the operators of a Hillcrest women’s health clinic subjected them to citizen’s arrests.

Reversing that verdict, a three-judge appeals panel ruled that significant federal legal questions were not at issue in the case, thereby setting aside a decision by U.S. District Judge Earl B. Gilliam that led to five anti-abortion protesters being awarded $59,000 in damages.

Although the demonstrators could appeal Friday’s decision to the U.S. Supreme Court, the attorney for the Hillcrest clinic predicted that the 9th District’s ruling--which returned the case to Gilliam’s court--will effectively end the contentious trial.

“This leaves the demonstrators in the position of having to try to get back into the case in state court, and I think the statute of limitations has already (expired),” said Sacramento attorney Mark Merin, who represents the Womancare Clinic on 6th Avenue. “I expect the entire case will be dropped.”

Lloyd Tooks of San Diego, the attorney for the demonstrators, could not be reached for comment Friday.

Tactic Less Effective

Merin, however, said he believes that Friday’s ruling will make anti-abortion protesters “less eager to use their common tactic of trying to provoke . . . a citizen’s arrest” in anticipation of filing a lawsuit alleging that their rights were violated. Fearing involvement in a time-consuming and potentially costly lawsuit, abortion clinic operators sometimes are reluctant to “use proper authority to clear out” demonstrators, Merin added.

“Now, that tactic is going to be much less effective,” Merin said. “(Clinic) operators will feel more confident . . . of their rights.”

The case stemmed from an October, 1985, incident outside the offices of the Womancare Clinic, where abortions are performed. Earlier, a Superior Court judge had issued a restraining order prohibiting the Bible Missionary Fellowship, a Santee fundamentalist church headed by the Rev. Dorman Owens, from picketing outside the clinic.

When the five abortion protesters arrived to picket, the clinic’s operators asked police officers who were monitoring the protest to arrest the demonstrators for violating that court order. After police refused to do so because the picketing was peaceful, clinic employees made citizen’s arrests and turned the protesters over to police, who issued misdemeanor citations to the five.

The five were charged with violating a restraining order, but those charges were dismissed by a Municipal Court judge who found that the order did not apply to them because they were not members of the Santee church.

Five Awarded Damages

Bolstered by that ruling, the five protesters then filed a civil suit in federal court alleging that they had been deprived of their First Amendment rights through false arrests. After Gilliam ruled in a pretrial hearing that the arrests were illegal, a jury awarded the five protesters $11,800 each in damages.

Two months later, seven people identified as members of the Bible Missionary Fellowship--including Owens and Cheryl Sullenger, one of the five demonstrators arrested in the Womancare case--were indicted for conspiring to bomb another abortion clinic. But when the Womancare officials asked for a new trial on the basis of that new development, Gilliam rejected their request, saying that a jury had already decided that there was no link between Sullenger and Owens.

Owens now is serving a 22-month prison term for witness tampering in the attempted bombing case, while Sullenger, who pleaded guilty to a conspiracy charge, was sentenced to three years--a term since reduced to 2 1/2 years.

One of the protesters’ key legal arguments, raised in their effort to show that federal constitutional issues were involved in the case, was that the police were a “joint participant” in the arrests outside the Womancare clinic. In support of that contention, they noted that police took control of the protesters after the citizen’s arrests were made.

Differing with that interpretation, the 9th District judges stressed in Friday’s ruling that a police officer actually attempted to discourage Womancare employees from making the citizen’s arrests by warning them of the danger of civil liability for false arrests. In addition, the officer, after making his own review of the situation, decided not to arrest the protesters himself, the court noted.

“There is no indication . . . that state agents failed to use independent judgment or in any way coerced or encouraged Womancare employees to effect the citizen’s arrest,” the judges said. “The police officer’s issuance of citations based on the citizen’s arrests does not constitute joint action.”

In addition to the content of Friday’s ruling, another reason that Womancare attorney Merin said he doubts that the protesters will pursue the case in state court is Sullenger’s involvement in the attempted bombing incident.

“Being convicted of conspiracy hardly makes her a very sympathetic figure,” Merin said.