No. 12-1334 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ELEANOR MCCULLEN, et al., Plaintiffs-Appellants, v. MARTHA COAKLEY, et al., Defendants-Appellees. On Appeal from the United States District Court for the District of Massachusetts, No. 08-cv-10066 Before the Honorable Joseph L. Tauro JOINT APPENDIX MARTHA COAKLEY ATTORNEY GENERAL OF MASSACHUSETTS KENNETH W. SALINGER ASSISTANT ATTORNEY GENERAL, GOVERNMENT BUREAU GABRIELLE VIATOR ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION One Ashburton Place Boston, MA 02108 (617) 963-2075 Counsel for Defendants-Appellees MARK L. RIENZI THE CATHOLIC UNIVERSITY OF AMERICA COLUMBUS SCHOOL OF LAW 3600 John McCormack Road, NE Washington, DC 20064 (202) 319-5140 MICHAEL J. DEPRIMO 778 Choate Avenue Hamden, CT 06518 (203) 281-1496 Counsel for Plaintiffs-Appellants ADDITIONAL COUNSEL LISTED ON INSIDE COVER May 21, 2012
Transcript
No. 12-1334
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
ELEANOR MCCULLEN, et al., Plaintiffs-Appellants,
v.
MARTHA COAKLEY, et al., Defendants-Appellees.
On Appeal from the United States District Court
for the District of Massachusetts, No. 08-cv-10066 Before the Honorable Joseph L. Tauro
JOINT APPENDIX
MARTHA COAKLEY ATTORNEY GENERAL OF MASSACHUSETTS KENNETH W. SALINGER ASSISTANT ATTORNEY GENERAL, GOVERNMENT BUREAU GABRIELLE VIATOR ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION One Ashburton Place Boston, MA 02108 (617) 963-2075 Counsel for Defendants-Appellees
MARK L. RIENZI THE CATHOLIC UNIVERSITY OF AMERICACOLUMBUS SCHOOL OF LAW 3600 John McCormack Road, NE Washington, DC 20064 (202) 319-5140 MICHAEL J. DEPRIMO 778 Choate Avenue Hamden, CT 06518 (203) 281-1496 Counsel for Plaintiffs-Appellants
ADDITIONAL COUNSEL LISTED ON INSIDE COVER May 21, 2012
EDWARD C. DUMONT TODD C. ZUBLER WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue, NW Washington, DC 20006 (202) 663-6000 PHILIP D. MORAN 265 Essex Street, Suite 202 Salem, MA 01970 (978) 745-6085 Counsel for Plaintiffs-Appellants
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TABLE OF CONTENTS Page
District Court Docketing Statement...........................................................................1
Notice of Appeal ......................................................................................................28
Joint Stipulated Trial Record for Facial Challenge ...............................................111
Affidavit of Adam Martignetti with Exhibits ........................................................117
Affidavit of Vineeth Narayanan with Exhibit........................................................134
Affidavit of Richard A. Powell with Exhibits .......................................................189
Stipulated Dismissal of Carmel Farrell..................................................................203
Stipulated Dismissal of Donald Golden and Noreen Beebe..................................205
Joint Stipulated Trial Record for As Applied Challenge.......................................207
Declaration of Eleanor McCullen with Exhibits ...................................................210
Declaration of Eric Cadin ......................................................................................236
Declaration of Jean Blackburn Zarrella with Exhibits ..........................................244
Declaration of Gregory Smith................................................................................261
Declaration of Mark Bashour with Exhibits ..........................................................265
Declaration of Nancy Clark with Exhibits.............................................................308
Declaration of Cyril Shea, M.D. with Exhibits .....................................................318
Partial Deposition of Eleanor McCullen with Exhibit...........................................376
Partial Deposition of Eric Cadin ............................................................................394
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Partial Deposition of Jean Blackburn Zarrella with Exhibits ................................405
Partial Deposition of Gregory Smith .....................................................................427
Partial Deposition of Mark Bashour ......................................................................433
Partial Deposition of Nancy Clark.........................................................................453
Partial Deposition of Cyril Shea with Exhibits......................................................467
Partial Deposition of Michael Baniukiewicz with Exhibit ....................................479
Partial Deposition of Kristen Metzger with Exhibits ............................................509
Stipulation regarding Buffer Zone Measurements with Exhibits ..........................544
United States District Court District of Massachusetts (Boston)
CIVIL DOCKET FOR CASE #: 1:08-cv-10066-JLT
APPEAL
McCullen et al v. Coakley Assigned to: Judge Joseph L. Tauro
Cause: 42:1983 Civil Rights ActCase in other court: First Circuit, 08-02310
Date Filed: 01/16/2008 Date Terminated: 02/22/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: OtherJurisdiction: Federal Question
Plaintiff
Eleanor McCullen represented by Benjamin W. Bull Alliance Defense Fund 15100 N. 90th Street Scottsdale, AZ 85260 480-444-0020 Fax: 480-444-0028 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Kevin H. Theriot Alliance Defense Fund 15192 Rosewood Leawood, KS 66224 913-685-8000 Fax: 913-685-8001 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Mark L Rienzi Catholic University of America, Columbus Law School 3600 John McCormack Road, NE Washington, DC 20064 202-319-4970 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael J. Deprimo 778 Choate Avenue Hamden, CT 06518 662-491-2000
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Fax: 203-281-1496 Email: [email protected] LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Philip D. Moran Law Offices of Philip D. Moran 265 Essex Street Suite 202 Salem, MA 01970 978-745-6085 Fax: 978-741-2572 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Timothy D. Chandler Alliance Defense Fund Suite 100 101 Parkshore Drive Folsom, CA 95630 916-962-2850 Fax: 916-932-2851 Email: [email protected] TERMINATED: 07/28/2010 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Plaintiff
Jean Blackburn Zarrella represented by Benjamin W. Bull (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Kevin H. Theriot (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Mark L Rienzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael J. Deprimo (See above for address)
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LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Philip D. Moran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Timothy D. Chandler (See above for address) TERMINATED: 07/28/2010 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Plaintiff
Gregory A. Smith represented by Benjamin W. Bull (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Kevin H. Theriot (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Mark L Rienzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael J. Deprimo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Philip D. Moran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Timothy D. Chandler (See above for address) TERMINATED: 07/28/2010 LEAD ATTORNEY PRO HAC VICE
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Carmel Farrell represented by Benjamin W. Bull (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Kevin H. Theriot (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Mark L Rienzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael J. Deprimo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Philip D. Moran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Timothy D. Chandler (See above for address) TERMINATED: 07/28/2010 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Plaintiff
Eric Cadin represented by Benjamin W. Bull (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Kevin H. Theriot (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
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Mark L Rienzi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Michael J. Deprimo (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Philip D. Moran (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Timothy D. Chandler (See above for address) TERMINATED: 07/28/2010 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Plaintiff
Cyril Shea represented by Michael J. Deprimo 778 Choate Avenue Hamden, CT 06518 662-491-2000 Fax: 203-281-1496 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED
Plaintiff
Donald Golden represented by Michael J. Deprimo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Plaintiff
Nancy Clark represented by Michael J. Deprimo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Plaintiff
Mark Bashour represented by Michael J. Deprimo (See above for address) LEAD ATTORNEY
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Noreen Beebe represented by Michael J. Deprimo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
V.
Defendant
Martha Coakley Attorney General for the Commonwealth of Massachusetts
represented by Kenneth W. Salinger Massachusetts Attorney General's Office Government Bureau One Ashburton Place Boston, MA 02108 617.963.2075 Fax: 617.727.5785 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Anna-Marie L. Tabor Consumer Financial Protection Bureau 1500 Pennsylvania Ave. NW Attn: 1801 L Street Washington, DC 20220 202-435-7818 Email: [email protected] TERMINATED: 09/25/2009 ATTORNEY TO BE NOTICED Gabrielle Viator Office of the Massachusetts Attorney General One Ashburton Place Boston, MA 02108 617-963-2567 Email: [email protected] ATTORNEY TO BE NOTICED Patricia Correa Office of Town Counsel 333 Washington Street Brookline, MA 02445 617/730-2190 Email: [email protected] TERMINATED: 03/26/2008 ATTORNEY TO BE NOTICED
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Daniel F. Conley in his official capacity as District Attorney for Suffolk County
represented by Kenneth W. Salinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
Joseph D. Early in his official capacity as District Attorney for Worcester County
represented by Kenneth W. Salinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
Michael W. Morrissey in his official capacity as District Attorney for Norfolk County
represented by Kenneth W. Salinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Defendant
Mark G Mastroianni in his official capacity as District Attorney for Hampden County
represented by Kenneth W. Salinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amicus
Marylynda Augelli represented by Dwight G. Duncan Southern New England School of Law 333 Faunce Corner Rd. North Dartmouth, MA 02747-1252 508-998-9600 ext.124 Fax: 508-998-9564 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amicus
Susanna Brennan represented by Dwight G. Duncan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amicus
Esther Ripplinger represented by Dwight G. Duncan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amicus
Molly White represented by Dwight G. Duncan
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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Date Filed # Docket Text
01/16/2008 1 COMPLAINT against Martha Coakley Filing fee: $ 350, receipt number 01010000000001813911, filed by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Civil Cover Sheet, # 4 Local Filing Category Form)(Moran, Philip) (Additional attachment(s) added on 1/18/2008: # 5 complaint, # 6 Exhibit 1, # 7 Exhibit 2, # 8 Civil Cover Sheet, # 9 category sheet) (Hassett, Kathy). (Entered: 01/16/2008)
01/16/2008 2 MOTION for Preliminary Injunction by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Exhibit 1 - Declaration of Eleanor McCullen, # 2 Exhibit 2 - Declaration of Jean Blackburn Zarrella, # 3 Exhibit 3 - Declaration of Carmel Farrell, # 4 Exhibit 4 - Declaration of Eric Cadin, # 5 Exhibit 5 - Declaration of Gregory A. Smith, # 6 Exhibit 6 - Declaration of William Cotter, # 7 Exhibit 7 - Declaration of Esther Ripplinger, # 8 Exhibit 8 - Declaration of Sherri Lewellyn, # 9 Exhibit 9 - Declaration of Molly White, # 10 Exhibit 10 - Declaration of Marlynda Augelli, # 11 Exhibit 11 - Declaration of Magdalena Sam Castro, # 12 Exhibit 12 - Declaration of Susanna Brennan)(Moran, Philip) (Entered: 01/16/2008)
01/16/2008 3 ELECTRONIC NOTICE of Case Assignment. Magistrate Judge Judith G. Dein assigned to case. Plaintiff's counsel, or defendant's counsel if this case was initiated by the filing of a Notice of Removal, are directed to the attached General Order and Notice regarding Consent to Proceed before the Magistrate Judge. These documents will be mailed to counsel not receiving notice electronically. (Johnson, Jay) (Entered: 01/16/2008)
01/16/2008 4 Summons Issued as to Martha Coakley. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Johnson, Jay) (Entered: 01/16/2008)
01/16/2008 5 MOTION for Leave to File Excess Pages in Plaintiffs' Memorandum of Law in Support of Motion for Preliminary Injunction by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Plaintiffs' Proposed Memorandum of Law in Support of Motion for Preliminary Injunction, # 2 Exhibit 1 - in Support of Plaintiffs' Proposed Memorandum of Law, # 3 Exhibit 2, Part 1 - in Support of Plaintiffs' Proposed Memorandum of Law, # 4 Exhibit 2, Part 3 - in Support of Plaintiffs' Proposed Memorandum of Law, # 5 Exhibit 3, Part 1 - in Support of Plaintiffs' Proposed Memorandum of Law, # 6 Exhibit 3, Part 2 - in Support of Plaintiffs' Proposed Memorandum of Law,
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# 7 Exhibit 4 - in Support of Plaintiffs' Proposed Memorandum of Law, # 8 Exhibit 5 - in Support of Plaintiffs' Proposed Memorandum of Law, # 9 Exhibit 6 - in Support of Plaintiffs' Proposed Memorandum of Law)(Moran, Philip) (Entered: 01/16/2008)
01/16/2008 6 MOTION for Leave to Appear Pro Hac Vice for admission of Michael J. DePrimo Filing fee $ 50, receipt number 01010000000001814247. by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Certificate of Good Standing)(Moran, Philip) (Entered: 01/16/2008)
01/16/2008 7 MOTION for Leave to Appear Pro Hac Vice for admission of Benjamin W. Bull Filing fee $ 50, receipt number 01010000000001814273. by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Certificate of Good Standing)(Moran, Philip) (Entered: 01/16/2008)
01/16/2008 8 MOTION for Leave to Appear Pro Hac Vice for admission of Kevin H. Theriot Filing fee $ 50, receipt number 01010000000001814294. by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Certificate of Good Standing)(Moran, Philip) (Entered: 01/16/2008)
01/16/2008 9 MOTION for Leave to Appear Pro Hac Vice for admission of Timothy D. Chandler Filing fee $ 50, receipt number 01010000000001814315. by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Certificate of Good Standing)(Moran, Philip) (Entered: 01/16/2008)
01/23/2008 10 NOTICE of Appearance by Kenneth W. Salinger on behalf of Martha Coakley (Salinger, Kenneth) (Entered: 01/23/2008)
01/23/2008 11 Assented to MOTION for Extension of Time to 02/15/2008 to File Response/Reply as to 2 MOTION for Preliminary Injunction by Martha Coakley.(Salinger, Kenneth) (Entered: 01/23/2008)
01/23/2008 12 NOTICE of Appearance by Anna-Marie L. Tabor on behalf of Martha Coakley (Tabor, Anna-Marie) (Entered: 01/23/2008)
01/24/2008 13 NOTICE of Appearance by Patricia Correa on behalf of Martha Coakley (Correa, Patricia) (Entered: 01/24/2008)
01/24/2008 14 SUMMONS Returned Executed Martha Coakley served on 1/23/2008, answer due 2/12/2008. (Moran, Philip) (Entered: 01/24/2008)
01/24/2008 15 Refusal to Consent to Proceed Before a US Magistrate Judge.. (Moran, Philip) (Entered: 01/24/2008)
01/25/2008 ELECTRONIC NOTICE of Reassignment. Judge Joseph L. Tauro added. Magistrate Judge Judith G. Dein no longer assigned to case. (Sonnenberg, Elizabeth) (Entered: 01/25/2008)
01/29/2008 Judge Joseph L. Tauro: Electronic ORDER entered granting 11 Motion for Extension of Time to File Response/Reply re 5 MOTION for Leave to File
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Excess Pages in Plaintiffs' Memorandum of Law in Support of Motion for Preliminary Injunction. Responses due by 2/15/2008 (Lovett, Zita) Modified on 1/30/2008 (Abaid, Kimberly). (Entered: 01/29/2008)
01/29/2008 Judge Joseph L. Tauro: Electronic ORDER entered granting 5 Motion for Leave to File Excess Pages; granting 6 Motion for Leave to Appear Pro Hac Vice; Added Michael J. Deprimo for Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell and Eric Cadin; granting 7 Motion for Leave to Appear Pro Hac Vice; Added Benjamin W. Bull for Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell and Eric Cadin; granting 8 Motion for Leave to Appear Pro Hac Vice; Added Kevin H. Theriot for Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell and Eric Cadin; granting 9 Motion for Leave to Appear Pro Hac Vice; Added Timothy D. Chandler for Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell and Eric Cadin. Attorneys admitted Pro Hac Vice must register for electronic filing. To register go to the Court website at www.mad.uscourts.gov. Select Forms and then scroll down to CM/ECF Forms. (Abaid, Kimberly) (Entered: 01/30/2008)
01/31/2008 16 MEMORANDUM in Support re 2 MOTION for Preliminary Injunction Motion for Leave to File Excess Pages Granted on January 28, 2008 filed by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 - Part 1, # 3 Exhibit 2 - Part 2, # 4 Exhibit 3 - Part 1, # 5 Exhibit 3 - Part 2, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6)(Moran, Philip) (Entered: 01/31/2008)
02/03/2008 17 ANSWER to 1 Complaint, by Martha Coakley.(Salinger, Kenneth) (Entered: 02/03/2008)
02/05/2008 ELECTRONIC NOTICE issued requesting courtesy copy for 16 Memorandum in Support of Motion,. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 2/12/08. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Abaid, Kimberly) (Entered: 02/05/2008)
02/05/2008 18 Assented to MOTION for Leave to File Excess Pages in Opposition to Plaintiffs' Motion for Preliminary Injunction by Martha Coakley.(Salinger, Kenneth) (Entered: 02/05/2008)
02/06/2008 Judge Joseph L. Tauro: Electronic ORDER entered granting 18 Motion for Leave to File Excess Pages (Abaid, Kimberly) (Entered: 02/06/2008)
02/13/2008 19 Assented to MOTION for Extension of Time to Friday, February 22, 2008 to respond to plaintiffs' motion for a preliminary injunction, to and including Friday, February 22, 2008. by Martha Coakley.(Correa, Patricia) (Entered: 02/13/2008)
02/13/2008 Judge Joseph L. Tauro: Electronic ORDER entered granting 19 Motion for Extension of Time (Abaid, Kimberly) (Entered: 02/13/2008)
02/20/2008 20 MEMORANDUM in Opposition re 2 MOTION for Preliminary Injunction
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filed by Martha Coakley. (Salinger, Kenneth) (Entered: 02/20/2008)
02/20/2008 21 AFFIDAVIT in Opposition re 2 MOTION for Preliminary Injunction by Michael T. Baniukiewicz filed by Martha Coakley. (Attachments: # 1 Exhibit Ex. A to Baniukiewicz Aff.)(Salinger, Kenneth) (Entered: 02/20/2008)
02/20/2008 22 AFFIDAVIT of William B. Evans in Opposition re 2 MOTION for Preliminary Injunction filed by Martha Coakley. (Attachments: # 1 Exhibit Ex. A to Evans Aff.)(Salinger, Kenneth) (Entered: 02/20/2008)
02/20/2008 23 AFFIDAVIT of Eric W. Funk in Opposition re 2 MOTION for Preliminary Injunction filed by Martha Coakley. (Attachments: # 1 Exhibit Ex. A to Funk Aff., # 2 Exhibit Ex. B to Funk Aff., # 3 Exhibit Ex. C to Funk Aff., # 4 Exhibit Ex. D to Funk Aff., # 5 Exhibit Ex. E to Funk Aff., # 6 Exhibit Ex. F to Funk Aff.)(Salinger, Kenneth) (Entered: 02/20/2008)
02/20/2008 24 AFFIDAVIT of Adam T. Martignetti in Opposition re 2 MOTION for Preliminary Injunction filed by Martha Coakley. (Attachments: # 1 Exhibit A to Martignetti Aff., # 2 Exhibit B to Martignetti Aff., # 3 Exhibit C to Martignetti Aff., # 4 Exhibit D to Martignetti Aff., # 5 Exhibit E to Martignetti Aff., # 6 Exhibit F to Martignetti Aff., # 7 Exhibit G to Martignetti Aff., # 8 Exhibit H to Martignetti Aff., # 9 Exhibit I to Martignetti Aff., # 10 Exhibit J to Martignetti Aff.)(Salinger, Kenneth) (Entered: 02/20/2008)
02/20/2008 25 AFFIDAVIT of William McDermott in Opposition re 2 MOTION for Preliminary Injunction filed by Martha Coakley. (Attachments: # 1 Exhibit A to McDermott Aff.)(Salinger, Kenneth) (Entered: 02/20/2008)
02/20/2008 26 AFFIDAVIT of Vineeth Narayanan in Opposition re 2 MOTION for Preliminary Injunction filed by Martha Coakley. (Attachments: # 1 Exhibit A to Narayanan Aff., # 2 Exhibit B to Narayanan Aff., # 3 Exhibit C to Narayanan Aff.)(Salinger, Kenneth) (Entered: 02/20/2008)
02/20/2008 27 AFFIDAVIT of Detective Arthur O'Connell in Opposition re 2 MOTION for Preliminary Injunction filed by Martha Coakley. (Attachments: # 1 Exhibit A to O'Connell Aff.)(Salinger, Kenneth) (Entered: 02/20/2008)
02/20/2008 28 AFFIDAVIT of Nicholas P. Paras in Opposition re 2 MOTION for Preliminary Injunction filed by Martha Coakley. (Attachments: # 1 Exhibit A to Paras Aff., # 2 Exhibit B to Paras Aff., # 3 Exhibit C to Paras Aff., # 4 Exhibit D to Paras Aff., # 5 Exhibit E to Paras Aff., # 6 Exhibit F to Paras Aff., # 7 Exhibit G to Paras Aff., # 8 Exhibit H to Paras Aff., # 9 Exhibit I to Paras Aff., # 10 Exhibit J to Paras Aff.)(Salinger, Kenneth) (Entered: 02/20/2008)
02/20/2008 29 AFFIDAVIT of Richard A. Powell in Opposition re 2 MOTION for Preliminary Injunction filed by Martha Coakley. (Attachments: # 1 Exhibit A to Powell Aff., # 2 Exhibit B to Powell Aff., # 3 Exhibit C to Powell Aff., # 4 Exhibit D to Powell Aff., # 5 Exhibit E to Powell Aff., # 6 Exhibit F to Powell Aff., # 7 Exhibit G to Powell Aff.)(Salinger, Kenneth) (Entered: 02/20/2008)
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02/29/2008 30 Assented to MOTION for Leave to File Reply to Defendant's Opposition to Motion for Preliminary Injunction by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Proposed Reply to Defendant's Opposition to Motion for Preliminary Injunction, # 2 Exhibit 1)(Deprimo, Michael) (Entered: 02/29/2008)
03/03/2008 Judge Joseph L. Tauro: Electronic ORDER entered granting 30 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Abaid, Kimberly) (Entered: 03/03/2008)
03/03/2008 31 REPLY to Response to 2 MOTION for Preliminary Injunction filed by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Exhibit 1)(Deprimo, Michael) (Entered: 03/03/2008)
03/04/2008 ELECTRONIC NOTICE issued requesting courtesy copy for 31 Reply to Response to Motion. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 3/10/08. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Abaid, Kimberly) (Entered: 03/04/2008)
03/05/2008 32 NOTICE by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin re 16 Memorandum in Support of Motion, 2 MOTION for Preliminary Injunction Plaintiffs' Notice of Supplemental Authority in Support (Attachments: # 1 Supplement Authority)(Deprimo, Michael) (Entered: 03/05/2008)
03/26/2008 33 NOTICE of Withdrawal of Appearance by Patricia Correa (Correa, Patricia) (Entered: 03/26/2008)
04/16/2008 ELECTRONIC NOTICE of Hearing re status :STATUS CONFERENCE set for 4/23/2008 12:00 PM in Courtroom 22 before Judge Joseph L. Tauro. (this is case management conference in order to establish a schedulewith a view to consolidate the preliminary injunction with a trial on the merits).(Lovett, Zita) (Entered: 04/16/2008)
04/23/2008 34 Judge Joseph L. Tauro: ORDER entered. The Bench Trial on Plaintiffs' facial challenge shall be held on May 28, 2008 at 10:00 AM in Courtroom 22 before Judge Joseph L. Tauro.(Abaid, Kimberly) (Abaid, Kimberly). (Entered: 04/23/2008)
04/23/2008 Notice of correction to docket made by Court staff. Correction: Docket Entry 34 corrected because: Image did not correctly attach to the docket entry. Re-attached the Order to the docket entry to correct. (Abaid, Kimberly) (Entered: 04/23/2008)
04/23/2008 Electronic Clerk's Notes for proceedings held before Judge Joseph L. Tauro: Status Conference held on 4/23/2008,(see order for details). A hearing is scheduled for May 28, 2008 at 10:00 a.m. (Court Reporter:
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Carol Scott.)(Attorneys present: DiPrimo,Moran,plts.; Salinger,Tabor) (Lovett, Zita) (Entered: 04/23/2008)
05/06/2008 35 STIPULATION (Joint) As to the Content of the Trial Record for the Bench Trial of Plaintiffs' Facial Challenge, by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin, Martha Coakley. (Salinger, Kenneth) (Entered: 05/06/2008)
05/06/2008 36 EXHIBIT re 35 Stipulation - Trial Ex. 1 (Mass. St. 2007, c. 155), by Martha Coakley. (Salinger, Kenneth) (Entered: 05/06/2008)
05/06/2008 38 EXHIBIT re 35 Stipulation - Trial Ex. 3 (Mass. St. 2000, c.217), by Martha Coakley. (Salinger, Kenneth) (Entered: 05/06/2008)
05/07/2008 39 EXHIBIT re 35 Stipulation Trial Ex. 4 (Declaration of Eleanor McCullen) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 40 EXHIBIT re 35 Stipulation Trial Ex. 5 (Declaration of Jean Blackburn Zarella) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 41 EXHIBIT re 35 Stipulation Trial Ex. 6 (Declaration of Carmel Farrell) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 42 EXHIBIT re 35 Stipulation Trial Ex. 7 (Declaration of Eric Cadin) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 43 EXHIBIT re 35 Stipulation Trial Ex. 8 (Declaration of Gregory A. Smith) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 44 EXHIBIT re 35 Stipulation Trial Ex. 9 (Declaration of William Cotter) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 45 EXHIBIT re 35 Stipulation Trial Ex. 10 (Declaration of Esther Ripplinger) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 46 EXHIBIT re 35 Stipulation Trial Ex. 11 (Declaration of Sherri Lewellyn) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 47 EXHIBIT re 35 Stipulation Trial Ex. 12 (Declaration of Molly White) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 48 EXHIBIT re 35 Stipulation Trial Ex. 13 (Declaration of Marlynda Augelli) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel
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Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 49 EXHIBIT re 35 Stipulation Trial Ex. 14 (Declaration of Magdalena Sam Castro) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 50 EXHIBIT re 35 Stipulation Trial Ex. 15 (Declaration of Susanna Brennan) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 51 EXHIBIT re 35 Stipulation Trial Ex. 16 (Transcript of Deposition of William B. Evans 5/22/02) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 52 EXHIBIT re 35 Stipulation Trial Ex. 17, Part 1 (Letters to Legislature Concerning SB 1353, dated May 2007) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 53 EXHIBIT re 35 Stipulation Trial Ex. 17, Part 2 (Letters to Legislature Concerning SB1353, dated May 2002) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 54 EXHIBIT re 35 Stipulation Trial Ex. 18 (Massachusetts Senate Journal for October 23, 2007) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 55 EXHIBIT re 35 Stipulation Trial Ex. 19 (Massachusetts House of Representatives Journal for 10/25/07) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 56 EXHIBIT re 35 Stipulation Trial Ex. 20 (Senate Bill No. 1353) by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Deprimo, Michael) (Entered: 05/07/2008)
05/07/2008 57 CERTIFICATE OF SERVICE by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin re 52 Exhibit, 47 Exhibit, 50 Exhibit, 51 Exhibit, 45 Exhibit, 41 Exhibit, 54 Exhibit, 46 Exhibit, 40 Exhibit, 55 Exhibit, 49 Exhibit, 56 Exhibit, 43 Exhibit, 44 Exhibit, 48 Exhibit, 39 Exhibit, 42 Exhibit, 53 Exhibit Plaintiffs Exhibits 4-20, as agreed upon in the Joint Stipulation as to the Content of the Trial Record for the Bench Trial of Plaintiffs Facial Challenge. (Deprimo, Michael) (Entered: 05/07/2008)
this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 5/13/08. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Abaid, Kimberly) (Entered: 05/07/2008)
05/09/2008 58 EXHIBIT re 35 Stipulation - Trial Ex. 21 (Baniukiewicz Aff.), by Martha Coakley. (Attachments: # 1 Exhibit ex A)(Salinger, Kenneth) (Entered: 05/09/2008)
05/12/2008 ELECTRONIC NOTICE issued requesting courtesy copy for 60 Exhibit, 62 Exhibit, 65 Exhibit, 64 Exhibit, 66 Exhibit, 61 Exhibit, 59 Exhibit, 58 Exhibit, 63 Exhibit. Counsel who filed this document are requested to submit a courtesy copy of this document (or documents) to the Clerk's Office by 5/19/08. These documents must be clearly marked as a Courtesy Copy and reflect the document number assigned by CM/ECF. (Abaid, Kimberly) (Entered: 05/12/2008)
05/13/2008 67 NOTICE of Appearance by Dwight G. Duncan on behalf of Marylynda Augelli (Duncan, Dwight) (Entered: 05/13/2008)
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05/13/2008 68 Assented to MOTION for Leave to File Proposed Memorandum of Amicae Curiae by Marylynda Augelli. (Attachments: # 1 Proposed Memorandum of Amicae Curiae)(Duncan, Dwight) (Entered: 05/13/2008)
05/14/2008 Judge Joseph L. Tauro: Electronic ORDER entered granting 68 Motion for Leave to File; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Abaid, Kimberly) (Entered: 05/14/2008)
05/14/2008 69 Proposed Document(s) submitted by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. Document received: Plaintiffs' Proposed Findings of Fact and Conclusions of Law. (Deprimo, Michael) (Entered: 05/14/2008)
05/14/2008 70 Proposed Findings of Fact by Martha Coakley. (Salinger, Kenneth) (Entered: 05/14/2008)
05/14/2008 71 AMICUS BRIEF filed by Marylynda Augelli (Memorandum of Amicae Curiae). (Duncan, Dwight) (Entered: 05/14/2008)
05/28/2008 Electronic Clerk's Notes for proceedings held before Judge Joseph L. Tauro: Bench Trial held on 5/28/2008. Matter taken under advisement. Discovery is stayed until Order issues. (Court Reporter: Carol Scott.)(Attorneys present: Deprimo,Theriot,Moran,pltfs.,Salinger,Tabor,deft.) (Lovett, Zita) (Entered: 05/28/2008)
06/03/2008 72 MOTION for Leave to File Plaintiffs' Post-argument Brief on the Trial of Facial Challenge by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. (Attachments: # 1 Plaintiffs' Proposed Post-argument Brief on the Trial of Facial Challenge)(Deprimo, Michael) (Entered: 06/03/2008)
06/03/2008 73 Opposition re 72 MOTION for Leave to File Plaintiffs' Post-argument Brief on the Trial of Facial Challenge filed by Martha Coakley. (Salinger, Kenneth) (Entered: 06/03/2008)
06/05/2008 Judge Joseph L. Tauro: Electronic ORDER entered denying 72 Motion for Leave to File; (York, Steve) (Entered: 06/05/2008)
08/22/2008 74 Judge Joseph L. Tauro: ORDER entered. MEMORANDUM AND OPINION entered...."for the foregoing reasons, the Act survives under all three facial challenge standards"....."because defendant prevails on all counts of plaintiffs' facial challenge, plaintiffs' request for preliminary and permanent injunctive relief is DENIED." (Johnson, Mary) . (Entered: 08/22/2008)
09/16/2008 75 Plaintiffs' NOTICE OF INTERLOCUTORY APPEAL as to 74 Memorandum & Opinion, by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin. Filing fee $ 455, receipt number 01010000000002111669. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court
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of Appeals web site at http://www.ca1.uscourts.gov/clerks/transcript.htm MUST be completed and submitted to the Court of Appeals. Appeal Record due by 10/6/2008. (Deprimo, Michael) (Entered: 09/16/2008)
09/16/2008 76 Assented to MOTION to Stay Proceedings Pending Appeal by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin.(Deprimo, Michael) (Entered: 09/16/2008)
10/09/2008 77 Certified and Transmitted Record on Appeal to US Court of Appeals re 75 Notice of Interlocutory Appeal, (Attachments: # 1 docket sheet)(Ramos, Jeanette) (Entered: 10/09/2008)
10/21/2008 78 USCA Case Number 08-2310 for 75 Notice of Interlocutory Appeal, filed by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella. (Ramos, Jeanette) (Entered: 10/21/2008)
10/28/2008 TRANSCRIPT ORDER ACKNOWLEDGMENT FORM received from USCA and addressed to Carol Lynn Scott Transcript order form filed in USCA on October 28, 2008. Transcript ordered: May 28, 2008 due by 12/29/2008. (Scalfani, Deborah) (Entered: 10/30/2008)
12/01/2008 Judge Joseph L. Tauro: Electronic ORDER entered granting 76 Motion to Stay (Lovett, Zita) (Entered: 12/01/2008)
12/16/2008 79 Transcript of Non-Jury Trial - Day One held on May 28, 2008, before Judge Tauro. COA Case No. 08-2310. Court Reporter: Carol Lynn Scott at 617/330-1377. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Redaction Request due 1/3/2009. Redacted Transcript Deadline set for 1/13/2009. Release of Transcript Restriction set for 3/13/2009. (Scalfani, Deborah) (Entered: 12/16/2008)
12/16/2008 80 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is attached to this entry.. (Scalfani, Deborah) (Entered: 12/16/2008)
03/16/2009 81 Supplemental Record on Appeal transmitted to US Court of Appeals re 75 Notice of Interlocutory Appeal,, Documents included: 79 (Scalfani, Deborah) (Entered: 03/16/2009)
07/09/2009 82 USCA Judgment as to 75 Notice of Interlocutory Appeal,, filed by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella. This cause came to be heard on appeal from the United States District Court for the District of Massachusetts and was argued by counsel. Upon consideration whereof, it is now here ordered, adjudged amd decreed as follows: The judgment of the district court is affirmed. Judgment issued in the USCA 7/8/2009 (Ramos, Jeanette) (Entered: 07/09/2009)
07/09/2009 83 OPINION of USCA. USCA No. 08-2310. Opinion issued in the USCA 7/8/2009 (Ramos, Jeanette) (Entered: 07/09/2009)
08/28/2009 ELECTRONIC NOTICE of Hearing : Status Conference set for 9/8/2009
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11:00 AM in Courtroom 22 before Judge Joseph L. Tauro. (Lovett, Zita) (Entered: 08/28/2009)
08/31/2009 84 Assented to MOTION to Stay Proceedings Pending Plaintiffs' Petition for Certiorari to the United States Supreme Court by Eleanor McCullen, Jean Blackburn Zarrella, Gregory A. Smith, Carmel Farrell, Eric Cadin.(Deprimo, Michael) (Entered: 08/31/2009)
09/01/2009 Judge Joseph L. Tauro: Electronic ORDER entered granting 84 Motion to Stay (Abaid, Kimberly) (Entered: 09/01/2009)
09/03/2009 ELECTRONIC NOTICE Canceling Hearing. Hearing canceled: 9/8/2009 to: TO BE ADVISED. (Lovett, Zita) (Entered: 09/03/2009)
09/03/2009 85 MANDATE of USCA as to 75 Notice of Interlocutory Appeal, filed by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella. Appeal 75 Terminated. Mandate issued in the USCA 9/3/2009 (Ramos, Jeanette) (Entered: 09/03/2009)
09/04/2009 Appeal Record Returned: 75 Notice of Interlocutory Appeal, (Ramos, Jeanette) (Entered: 09/04/2009)
09/25/2009 86 NOTICE of Withdrawal of Appearance by Anna-Marie L. Tabor (Tabor, Anna-Marie) (Entered: 09/25/2009)
03/31/2010 ELECTRONIC NOTICE of Hearing : Status Conference set for 4/8/2010 12:00 PM in Courtroom 22 before Judge Joseph L. Tauro. (Lovett, Zita) (Entered: 03/31/2010)
04/01/2010 87 Joint MOTION to Continue Status Conference to April 28, 2010, by Eric Cadin, Martha Coakley, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella.(Salinger, Kenneth) (Entered: 04/01/2010)
04/07/2010 Judge Joseph L. Tauro: ELECTRONIC ORDER entered granting 87 Motion to Continue Status Conference set for 4/28/2010 02:15 PM in Courtroom 22 before Judge Joseph L. Tauro. (Lovett, Zita) (Entered: 04/07/2010)
04/07/2010 Set/Reset Hearings: Status Conference set for 4/28/2010 02:15 PM in Courtroom 22 before Judge Joseph L. Tauro. (Lovett, Zita) (Entered: 04/07/2010)
04/28/2010 ELECTRONIC Clerk's Notes for proceedings held before Judge Joseph L. Tauro: Status Conference held on 4/28/2010. Parties to submit a proposed iscovery schedule with the Court for the second phase of the case. (Court Reporter: Carol Scott at 617-330-1377.)(Attorneys present: Moran,Rienzy,Deprimo,pltfs;Sallinger,Viator,defts.) (Lovett, Zita) (Entered: 04/28/2010)
07/27/2010 89 NOTICE of Withdrawal of Appearance by Timothy D. Chandler (Chandler, Timothy) (Entered: 07/27/2010)
08/16/2010 ELECTRONIC NOTICE of Scheduling Conference Scheduling Conference set for 8/25/2010 11:00 AM in Courtroom 22 before Judge
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Joseph L. Tauro. (Counsel are requested to submit a joint proposed schedule by 8/20/2010)(Lovett, Zita) (Entered: 08/16/2010)
08/18/2010 90 Recommendations for Scheduling Order --Joint Proposed Schedule. (Salinger, Kenneth) (Entered: 08/18/2010)
08/24/2010 91 MEMORANDUM OF LAW by Martha Coakley to 90 Recommendations for Scheduling Order. (Salinger, Kenneth) (Entered: 08/24/2010)
08/24/2010 92 Response to Court's request for authorities re: reconsideration of facial challenge Letter/request (non-motion) from Plaintiffs' Counsel Mark Rienzi re: Proposed Scheduling Order. (Deprimo, Michael) (Entered: 08/24/2010)
08/25/2010 ELECTRONIC Clerk's Notes for proceedings held before Judge Joseph L. Tauro: Scheduling Conference held on 8/25/2010. (see order for details) A hearing on the cross motions for summary judgment will be held on December 2, 2010 at10:30 a.m. (Court Reporter: Carol Scott at 617-330-1377.)(Attorneys present: Moran,pltf; Salinger,deft.) (Lovett, Zita) (Entered: 08/26/2010)
08/25/2010 93 Judge Joseph L. Tauro: SCHEDULING ORDER entered. Hereby this court orders that: Amended Pleadings due by 9/17/2010; Defendant's Cross Motions due by 10/8/2010; Plaintiff's response to Defendant's Cross-Motion due by 11/5/2010. Motion Hearing scheduled for 12/2/2010 at 10:30 AM. IT IS SO ORDERED. (Geraldino-Karasek, Clarilde) (Entered: 08/26/2010)
08/26/2010 ELECTRONIC NOTICE: Motion Hearing set for 12/2/2010 10:30 AM in Courtroom 22 before Judge Joseph L. Tauro. (Geraldino-Karasek, Clarilde) (Entered: 08/26/2010)
09/17/2010 94 MOTION for Leave to File Amended Complaint by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella. (Attachments: # 1 Exhibit Proposed Amended Complaint, # 2 Exhibit Redlined Proposed Amended Complaint)(Deprimo, Michael) Modified on 11/29/2010 pursuant to ORDER of 9/22/2010)(Geraldino-Karasek, Clarilde). (Entered: 09/17/2010)
09/17/2010 95 MOTION for Order to To Permit Argument as to Facial Invalidity by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella.(Deprimo, Michael) (Entered: 09/17/2010)
09/21/2010 96 Judge Joseph L. Tauro: ORDER entered ALLOWED 94 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Geraldino-Karasek, Clarilde) (Entered: 09/21/2010)
09/22/2010 97 Judge Joseph L. Tauro: ORDER entered. This Court hereby ORDERS that re 96 Order of September 21, 2010 IS VACATED. Counsel are to adhere to the schedule previously established in the SCHEDULING ORDER 93 .
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IT IS SO ORDERED. (Geraldino-Karasek, Clarilde) (Entered: 09/22/2010)
09/30/2010 98 Opposition re 95 MOTION for Order to To Permit Argument as to Facial Invalidity filed by Martha Coakley. (Salinger, Kenneth) (Entered: 09/30/2010)
10/07/2010 99 MOTION for Judgment on the Pleadings on the As-Applied Claims in Counts Two Through Eight, by Martha Coakley.(Salinger, Kenneth) (Entered: 10/07/2010)
10/07/2010 100 MEMORANDUM in Opposition re 99 MOTION for Judgment on the Pleadings on the As-Applied Claims in Counts Two Through Eight,, 94 MOTION for Leave to File Amended Complaint (in Partial Opposition to Ps' Motion to Amend, and in Support of D's Motion for Judgment on the Pleadings), filed by Martha Coakley. (Salinger, Kenneth) (Entered: 10/07/2010)
10/13/2010 101 MOTION for Leave to File [PROPOSED] REPLY BRIEF IN SUPPORT OF MOTION TO PERMIT ARGUMENTS by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella. (Attachments: # 1 Exhibit Proposed Reply Brief)(Deprimo, Michael) (Entered: 10/13/2010)
10/14/2010 Judge Joseph L. Tauro: ELECTRONIC ORDER entered ALLOWED 101 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Geraldino-Karasek, Clarilde) (Entered: 10/14/2010)
10/15/2010 102 REPLY to Response to 95 MOTION for Order to To Permit Argument as to Facial Invalidity filed by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella. (Deprimo, Michael) (Entered: 10/15/2010)
11/01/2010 103 NOTICE of Appearance by Gabrielle Viator on behalf of Martha Coakley (Viator, Gabrielle) (Entered: 11/01/2010)
11/03/2010 104 Assented to MOTION for Leave to File Combined Reply/Response Brief by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella.(Deprimo, Michael) (Entered: 11/03/2010)
11/05/2010 105 MEMORANDUM In Opposition re 99 MOTION for Judgment on the Pleadings on the As-Applied Claims in Counts Two Through Eight, filed by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella. (Deprimo, Michael) Modified on 11/10/2010 to correct docket text (Geraldino-Karasek, Clarilde). (Entered: 11/05/2010)
11/10/2010 106 Assented to MOTION for Leave to File a Three-Page Surreply Memorandum, by Martha Coakley.(Salinger, Kenneth) (Main Document 106 replaced on 11/19/2010) (Additional attachment(s) added on 11/19/2010: # 1 Proposed Memorandum )Modified on 11/19/2010 to
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correct docket entry and re-file proposed memorandum as attachment. (Geraldino-Karasek, Clarilde). (Entered: 11/10/2010)
11/15/2010 107 Judge Joseph L. Tauro: ORDER entered ALLOWED 104 Assented to Motion for Leave to File Combined Reply/Response Brief ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document.; ALLOWED 106 Assented to MOTION for Leave to File a Three-Page Surreply Memorandum; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include - Leave to file granted on (date of order)- in the caption of the document. (Geraldino-Karasek, Clarilde) (Entered: 11/15/2010)
11/15/2010 108 SUR-REPLY to Motion re 95 MOTION for Order to To Permit Argument as to Facial Invalidity filed by Martha Coakley. (Salinger, Kenneth) (Entered: 11/15/2010)
11/22/2010 109 REPLY to Response to 99 MOTION for Judgment on the Pleadings on the As-Applied Claims in Counts Two Through Eight,, 94 MOTION for Leave to File Amended Complaint , Combined Response/Reply Brief filed by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella. (Deprimo, Michael) (Entered: 11/22/2010)
12/02/2010 ELECTRONIC Clerk's Notes for proceedings held before Judge Joseph L. Tauro: taking under advisement 95 Motion for Order; taking under advisement 99 Motion for Judgment on the Pleadings; Motion Hearing held on 12/2/2010 re 99 MOTION for Judgment on the Pleadings on the As-Applied Claims in Counts Two Through Eight, filed by Martha Coakley. (Court Reporter: Carol Scott at 617-330-1377.)(Attorneys present: Rienzi,Deprimo,pltfs;Salinger,Viator,deft.) (Lovett, Zita) (Entered: 12/02/2010)
12/29/2010 110 Judge Joseph L. Tauro: ORDER entered. For the reasons set forth in the accompanying memorandum, this court hereby orders that: Plaintiff's Motion for Order to To Permit Argument as to Facial Invalidity 95 is DENIED. Defendant's Motion for Judgment on the Pleadings on the As-Applied Claims in Counts Two Through Eight 99 is ALLOWED. Plaintiff's Motion for Leave to File Amended Complaint 94 is ALLOWED IN PART and DENIED IN PART. It is ALLOWED to the extent that it seeks to add additional abortion clinics, Plaintiffs, and Defendants for its as-applied claim in Count one. It is DENIED to the extent that it seeks to plead that Defendant's interpretation of the Act is " unconstitutional and renders the Act unconstitutional." It is also DENIED to the extent that Palintiffs seek to bolster their pleadings in any count other than the as-applied portion of Court One. Further, Plaintiffs are ordered to re-file an amended complaint that comports with these directions. Plaintiffs shall file the amended complaint by 02/27/2011. IT IS SO ORDERED. (Geraldino-Karasek, Clarilde) (Entered: 12/29/2010)
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12/29/2010 111 Judge Joseph L. Tauro: MEMORANDUM AND ORDER entered. Amended Complaint due by 2/27/2011. (Geraldino-Karasek, Clarilde) (Entered: 12/29/2010)
02/25/2011 112 AMENDED COMPLAINT against All Defendants, filed by Eric Cadin, Carmel Farrell, Eleanor McCullen, Gregory A. Smith, Jean Blackburn Zarrella, Cyril Shea, Donald Golden, Nancy Clark, Mark Bashour, Noreen Beebe.(Deprimo, Michael) (Entered: 02/25/2011)
03/01/2011 113 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Geraldino-Karasek, Clarilde) (Entered: 03/01/2011)
03/11/2011 114 NOTICE of Appearance by Kenneth W. Salinger on behalf of Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Michael W. Morrissey (Salinger, Kenneth) (Entered: 03/11/2011)
03/11/2011 115 ANSWER to 112 Amended Complaint by Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Michael W. Morrissey.(Salinger, Kenneth) (Entered: 03/11/2011)
03/15/2011 116 NOTICE of Scheduling Conference set for 4/12/2011 11:00 AM in Courtroom 22 before Judge Joseph L. Tauro. (Geraldino-Karasek, Clarilde) (Entered: 03/15/2011)
03/15/2011 117 Judge Joseph L. Tauro: RULE 26 DISCOVERY ORDER entered. (Geraldino-Karasek, Clarilde) (Entered: 03/15/2011)
04/01/2011 118 Disclosure pursuant to Rule 26 by Martha Coakley, Daniel F. Conley, Joseph D. Early.(Viator, Gabrielle) (Entered: 04/01/2011)
04/01/2011 119 Disclosure pursuant to Rule 26 by Mark Bashour, Noreen Beebe, Eric Cadin, Nancy Clark, Carmel Farrell, Donald Golden, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella.(Deprimo, Michael) (Entered: 04/01/2011)
04/05/2011 120 JOINT SUBMISSION pursuant to Local Rule 16.1 (d) by Mark Bashour, Noreen Beebe, Eric Cadin, Nancy Clark, Carmel Farrell, Donald Golden, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Attachments: # 1 Exhibit Plaintiffs' Local Rule 16.1(d)(3) Certification, # 2 Exhibit Defendants' Local Rule 16.1(d)(3) Certification)(Deprimo, Michael) (Entered: 04/05/2011)
04/12/2011 ELECTRONIC Clerk's Notes for proceedings held before Judge Joseph L. Tauro: Scheduling Conference held on 4/12/2011. Court sets August 17th, 2011 as the N/J trial date. See order for details. (Court Reporter: Carol Scott at 617-330-1377.)(Attorneys present: DePrimo,Moran,pltf;Salinger,Viator,deft.) (Lovett, Zita) (Entered: 04/12/2011)
04/12/2011 121 Judge Joseph L. Tauro: ORDER entered. SCHEDULING ORDER: The
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Parties shall exchange Witness Lists due by 6/30/2011. The Parties may conduct the following depositions included in this ORDER. Discovery to be completed by 7/29/2011 including the above-listed depositions. No further discovery is permitted without leave of this court. Any request for an evidentiary hearing by either Party must be made by 7/29/2011. If the Parties do not request an evidentiary hearing, they shall submit to this court their agree-upon factual record by 8/10/2011. Bench Trial set for 8/17/2011 10:00 AM in Courtroom 22 before Judge Joseph L. Tauro. IT IS SO ORDERED. See ORDER for details. (Geraldino-Karasek, Clarilde) (Entered: 04/12/2011)
04/12/2011 122 WAIVER OF SERVICE Returned Executed (Filed in Open Court ) by Daniel F. Conley. Daniel F. Conley waiver sent on 3/25/2011, answer due 5/24/2011. (Geraldino-Karasek, Clarilde) (Entered: 04/13/2011)
04/12/2011 123 WAIVER OF SERVICE Returned Executed (Filed in Open Court ) by Joseph D. Early. Joseph D. Early waiver sent on 3/25/2011, answer due 5/24/2011. (Geraldino-Karasek, Clarilde) (Entered: 04/13/2011)
04/12/2011 124 WAIVER OF SERVICE Returned Executed (Filed in Open Court ) by Mark G Mastroianni. Mark G Mastroianni waiver sent on 3/25/2011, answer due 5/24/2011. (Geraldino-Karasek, Clarilde) (Entered: 04/13/2011)
04/12/2011 125 WAIVER OF SERVICE Returned Executed (Filed in Open Court) by Michael W. Morrissey. Michael W. Morrissey waiver sent on 3/25/2011, answer due 5/24/2011. (Geraldino-Karasek, Clarilde) (Entered: 04/13/2011)
04/21/2011 ELECTRONIC NOTICE OF RESCHEDULING Bench Trial set for 8/24/2011 10:00 AM in Courtroom 22 before Judge Joseph L. Tauro. Bench Trial set for 8/25/2011 10:00 AM in Courtroom 22 before Judge Joseph L. Tauro. (because of a scheduling need the trial is re-scheduled for those two days).(Lovett, Zita) (Entered: 04/21/2011)
05/11/2011 126 STIPULATION of Dismissal (Partial), Covering the Claims by Carmel Farrell Regarding the Brookline Clinic, by Mark Bashour, Noreen Beebe, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Carmel Farrell, Donald Golden, Mark G Mastroianni, Eleanor McCullen, Michael W. Morrissey, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Salinger, Kenneth) (Entered: 05/11/2011)
06/28/2011 127 STIPULATION of Dismissal by Noreen Beebe, Donald Golden. (Deprimo, Michael) (Entered: 06/28/2011)
08/09/2011 128 STIPULATION as to the Content of the Trial Record for the Bench Trial of Plaintiffs' As-Applied Challenge by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 129 STIPULATION Regarding Buffer Zone Measurements by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D.
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Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Attachments: # 1 Exhibit A)(Viator, Gabrielle) (Main Document 129 replaced on 8/9/2011 with correct signed main document) (Finn, Mary). (Entered: 08/09/2011)
08/09/2011 130 NOTICE by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Michael W. Morrissey, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Deposition of Eleanor McCullen (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 131 NOTICE by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Deposition of Eric Cadin (Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 132 NOTICE by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Deposition of Jean Blackburn Zarrella (Attachments: # 1 Exhibit 9, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 12)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 133 NOTICE by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Deposition of Gregory Smith (Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 134 NOTICE by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Deposition of Cyril Shea (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 135 NOTICE by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Deposition of Nancy Clark (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 136 NOTICE by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Deposition of Mark Bashour (Attachments: # 1 Exhibit 8, # 2 Exhibit 9)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 137 NOTICE by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor
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McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Deposition of Michael Baniukiewicz (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 138 NOTICE by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Deposition of Kristen Metzger (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 139 DECLARATION of Eleanor McCullen by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit A-3, # 4 Exhibit B-1, # 5 Exhibit B-2, # 6 Exhibit B-3, # 7 Exhibit B-4, # 8 Exhibit B-5, # 9 Exhibit B-6, # 10 Exhibit B-7, # 11 Exhibit B-8, # 12 Exhibit B-9)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 140 DECLARATION of Eric Caden by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 141 DECLARATION of Jean Blackburn Zarrella by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit A-3, # 4 Exhibit A-4, # 5 Exhibit A-5)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 142 DECLARATION of Gregory Smith by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Michael W. Morrissey, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 144 DECLARATION of Nancy Clark by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Attachments: # 1 Exhibit A)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 145 DECLARATION of Mark Bashour by Mark Bashour, Eric Cadin, Nancy Clark, Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit A-3, # 4 Exhibit B-1, # 5 Exhibit B-2, # 6 Exhibit C-1, # 7 Exhibit C-2, # 8 Exhibit C-3, # 9 Exhibit C-4, # 10 Exhibit C-5, # 11 Exhibit D-1, # 12 Exhibit D-2, # 13 Exhibit E-1, # 14 Exhibit E-2, # 15 Exhibit E-3, # 16 Exhibit F-1, # 17 Exhibit F-2, # 18 Exhibit G, # 19 Exhibit H-1, # 20 Exhibit H-2, # 21 Exhibit H-3, # 22 Exhibit H-4, # 23 Exhibit H-5)(Viator, Gabrielle) (Entered: 08/09/2011)
08/09/2011 146 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni. (Viator, Gabrielle) (Entered: 08/09/2011)
08/15/2011 147 Proposed Findings of Fact by Martha Coakley, Daniel F. Conley, Joseph D. Early, Mark G Mastroianni. (Salinger, Kenneth) (Entered: 08/15/2011)
08/24/2011 ELECTRONIC Clerk's Notes for proceedings held before Judge Joseph L. Tauro: Bench Trial held on 8/24/2011. Court takes it under advisement. Counsel are requested to file proposed findings by October 12, 2011. (Court Reporter: Carol Scott at 617-330-1377.)(Attorneys present: DePrimo,Moran,pltf;Salinger,Viator,deft.) (Lovett, Zita) (Entered: 08/24/2011)
08/24/2011 148 Judge Joseph L. Tauro: ORDER entered. After a Bench Trial held on 8/24/2011, this court hereby orders that: After receipt of the official trial transcript, Plaintiffs and Defendants shall each file a proposed findings of Fact with appropriate citations to the trial record by 10/12/2011. Set Deadlines as to Responses due by 10/12/2011. (Geraldino-Karasek, Clarilde) (Entered: 08/25/2011)
09/13/2011 NOTICE by the Court: The transcript of the trial on 8/24/2011 will now be produced 3 weeks from tomorrow, counsel are requested to file their briefs accordingly. (Lovett, Zita) (Entered: 09/13/2011)
10/05/2011 149 Transcript of Bench Trial Day One held on August 24, 2011, before Judge Joseph L. Tauro. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Carol Scott at 617-330-1377 Redaction Request due 10/26/2011. Redacted Transcript Deadline set for 11/7/2011. Release of Transcript Restriction set for 1/3/2012. (Scalfani, Deborah) (Entered: 10/05/2011)
10/05/2011 150 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, a copy of which is
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attached to this entry.. (Scalfani, Deborah) (Entered: 10/05/2011)
10/12/2011 151 Supplemental Proposed Findings of Fact by All Defendants. (Salinger, Kenneth) (Entered: 10/12/2011)
10/29/2011 152 Proposed Findings of Fact by Mark Bashour, Eric Cadin, Nancy Clark, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella. (Deprimo, Michael) (Entered: 10/29/2011)
02/22/2012 153 Judge Joseph L. Tauro: ORDER entered. MEMORANDUM AND ORDER.(Geraldino-Karasek, Clarilde) (Entered: 02/22/2012)
02/22/2012 154 Judge Joseph L. Tauro: ORDER entered. ORDER DISMISSING CASE(Geraldino-Karasek, Clarilde) (Entered: 02/22/2012)
02/22/2012 Civil Case Terminated. (Geraldino-Karasek, Clarilde) (Entered: 02/22/2012)
03/19/2012 155 NOTICE OF APPEAL by Mark Bashour, Eric Cadin, Nancy Clark, Eleanor McCullen, Cyril Shea, Gregory A. Smith, Jean Blackburn Zarrella Filing fee: $ 455, receipt number 0101-3861050 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 4/9/2012. (Deprimo, Michael) (Entered: 03/19/2012)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION ELEANOR McCULLEN, JEAN ) BLACKBURN ZARRELLA, ) GREGORY A. SMITH, ERIC CADIN, ) CYRIL SHEA, NANCY CLARK, and ) MARK BASHOUR, ) ) Civil Action 1:08-CV-10066-JLT Plaintiffs, ) ) v. ) ) MARTHA COAKLEY, Attorney ) General for the COMMONWEALTH OF ) MASSACHUSETTS, DANIEL F. ) CONLEY, District Attorney for Suffolk ) County, MARK G. MASTROIANNI, ) District Attorney for Hampden County, and ) JOSEPH D. EARLY, District Attorney ) for Worcester County, ) ) Defendants. ) ______________________________________________________________________________
NOTICE OF APPEAL ______________________________________________________________________________
Notice is hereby given that, pursuant to Fed. R. App. P 3, all Plaintiffs appeal to the
United States Court of Appeals for the First Circuit from the final judgment entered on February
22, 2012, and from all other adverse rulings made during the course of the proceedings including,
without limitation, 1) the order entered on August 22, 2008 holding the challenged statute
constitutionally valid on its face; 2) the order entered on December 29, 2010 denying Plaintiffs’
Motion to Permit Arguments as to Facial Invalidity, granting Defendants’ Motion for Judgment
on the Pleadings on the As-Applied Claims in Counts Two Through Eight, and granting in part
and denying in part Plaintiffs’ Motion for Leave to File Amended Complaint; and 3) the order
Case 1:08-cv-10066-JLT Document 155 Filed 03/19/12 Page 1 of 3
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2
entered on February 22, 2012 holding the challenged statute constitutionally valid as applied to
Plaintiffs’ activities.
Respectfully submitted,
/s/ Michael J. DePrimo Michael J. DePrimo, CT Bar # 402211 Admitted pro hac vice Attorney at Law 778 Choate Avenue Hamden, Connecticut 06518 Tel: (203) 893-9393 Fax: (203) 281-1496 Email: [email protected] Mark L. Rienzi, Esq. The Catholic University of America Columbus School of Law 3600 John McCormack Road, NE Washington, D.C. 20064 (202) 319-5140 Email: [email protected]
Philip D. Moran, MA Bar # 353920 Philip D. Moran P.C. 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: [email protected]
Benjamin W. Bull, AZ Bar # 009940 Admitted pro hac vice
Alliance Defense Fund 15100 N. 90th Street Scottsdale, Arizona 85260 Tel: (480) 444-0020 Fax: (480) 444-0028 Email: [email protected]
Case 1:08-cv-10066-JLT Document 155 Filed 03/19/12 Page 2 of 3
I hereby certify that this document was filed electronically through the Electronic Case
Filing (ECF) system and thus copies will be sent electronically to the registered participants on
the Notice of Electronic Filing.
/s/ Michael J. DePrimo Michael J. DePrimo
Case 1:08-cv-10066-JLT Document 155 Filed 03/19/12 Page 3 of 3
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION ELEANOR McCULLEN, JEAN ) BLACKBURN ZARRELLA, ) GREGORY A. SMITH, CARMEL ) FARRELL, and ERIC CADIN, ) ) Civil Action No.______________ Plaintiffs, ) ) v. ) ) MARTHA COAKLEY, Attorney ) General for the COMMONWEALTH OF ) MASSACHUSETTS, ) ) Defendant. ) ________________________________________________________________________
COMPLAINT FOR CIVIL RIGHTS VIOLATIONS, DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF
1. This is a civil rights action brought pursuant to 42 U.S.C. § 1983
challenging the constitutionality, facially and as applied, of Mass. Gen. L. chapter 266:
Section 120E1/2(b), as amended, which creates a fixed buffer with a radius of 35-feet
(hereafter, “zone”) around the entrances, exits, and driveways of reproductive health care
facilities that perform abortions (hereafter, “the Act”). A copy of the Act is attached
hereto as Ex. 1.
2. The Act is an unconstitutional regulation designed and intended to ban
virtually all citizens from engaging in fundamental rights and liberties on significant
portions of public sidewalks and streets adjacent to non-hospital abortion clinics. It
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essentially and unlawfully privatizes public ways held in the public trust for use by all
citizens.
3. The Act chills and deprives Plaintiffs and third parties from engaging in
expressive activities guaranteed by the First and Fourteenth Amendments to the United
States Constitution. Preliminary and permanent injunctive relief is warranted.
II. JURISDICTION AND VENUE
4. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C.
§§ 1331 and 1343, and 42 U.S.C. § 1983. The Court has jurisdiction over the request for
declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
5. Venue is proper in the District of Massachusetts, Boston Division,
pursuant to 28 U.S.C. § 1391(b) because the claims arise in that district and a majority of
the parties reside in that district.
III. IDENTIFICATION OF PARTIES
6. Plaintiff Eleanor McCullen is a citizen of the United States and a resident
of Chestnut Hill, Massachusetts. She is a 71 year-old mother and grandmother. She has
never been arrested.
7. Plaintiff Jean Blackburn Zarrella is a citizen of the United States and a
resident of Lynnfield, Massachusetts. She is an 81 year-old mother and grandmother.
She has never been arrested.
8. Plaintiff Gregory A. Smith is a citizen of the United States and a resident
of Stoughton, Massachusetts. He is a 74 year-old father and grandfather.
2
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9. Plaintiff Carmel Farrell is a citizen of the United States and a resident of
Plymouth, Massachusetts. She is a 61 year-old mother and grandmother. She has never
been arrested.
10. Plaintiff Eric Cadin is a citizen of the United States and a resident of
Weymouth, Massachusetts. He is a 27 year-old single adult male who is studying pre-
med at Harvard University. He has never been arrested.
11. Defendant Martha Coakley is Attorney General for the Commonwealth of
Massachusetts and, in that capacity, is the chief law enforcement officer for the
Commonwealth. She is charged with overseeing prosecutions for violations of the Act.
She is sued in her official capacity only.
IV. ALLEGATIONS OF FACT
12. Subsection (b) of the Act states,
No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of thirty-five feet of any portion of an entrance to, exit from, or driveway of a reproductive health care facility, or within the area within a rectangle created by extending the outside boundaries of any entrance to, exit from, or driveway of, a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway. This subsection shall not apply to the following:
persons entering or leaving such facility;
employees or agents of such facility acting within the scope of their employment;
law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment;
persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility.
3
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13. Subsection (c) of the Act provides that subsection (b) shall take effect
during a facility’s business hours and if the area contained within the radius and rectangle
described in said subsection (b) is clearly marked and posted.
14. Subsection (d) of the Act makes criminal a violation of subsection (b) of
same, providing that,
[w]hoever knowingly violates this section shall be punished, for the first offense, by a fine of not more than $500 or not more than three months in a jail or house of correction, or by both such fine and imprisonment, and for each subsequent offense, by a fine of not less than $500 and not more than $5,000 or not more than two and one-half years in a jail or house of correction, or both such fine and imprisonment.
15. Subsection (e) of the Act makes it unlawful to obstruct, detain, hinder,
impede or block another person’s entry to or exit from a reproductive health care facility.
Plaintiffs do not challenge this subsection.
16. The Act was adopted on a purported emergency basis and became
effective on November 13, 2007, the date the Act was signed by the Governor.
17. The stated underlying purpose for the Act, as set forth in the preamble to
the bill introduced and numbered Senate Bill 1353, is to comply with the State’s
fundamental obligation to preserve public safety by creating clearly defined boundaries to
improve the ability of safety officials to protect the public -- specifically pedestrians
travelling peacefully on Massachusetts streets and sidewalks. See Senate Bill 1353,
attached hereto as Ex. 2.
18. By its plain terms, the Act applies only to reproductive health care
facilities that perform abortions. Hospitals in which abortions are performed are excluded
from the Act.
4
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19. Plaintiffs are pro-life advocates motivated to oppose the practice of
abortion because of their religious and/or moral beliefs that induced abortion is the
deliberate destruction of innocent human life. Plaintiffs regularly travel to the public
ways adjacent to reproductive health care facilities in Massachusetts to peacefully
provide information about abortion alternatives and to offer assistance and support to
persons entering and/or exiting the facility.
20. As part of their ministry and/or peaceful pro-life advocacy, Plaintiffs offer
secular and religious literature to persons approaching reproductive health care facilities
(hereinafter “clinic clients”). Plaintiffs do this in an effort to educate clinic clients and
others that alternatives to abortion are available, including adoption and other means of
support, including financial and/or emotional support.
21. In addition to distributing literature, one or more Plaintiffs engage in other
peaceful expressive activities on the public ways adjacent to reproductive health care
facilities including oral advocacy, counseling, and prayer.
22. Pro-life advocates have been educating and counseling men and women
on the public ways adjacent to reproductive health care facilities in Massachusetts since
1983 or before.
23. Plaintiffs desire to orally communicate with clinic clients and passersby
from a distance in which they can speak in a normal conversational tone and make eye
contact. Plaintiffs wish to avoid raising their voices or speaking from long distances.
24. Because in most instances they cannot identify clinic clients until they
actually approach the reproductive health care facility, Plaintiffs and other pro-life
advocates must station themselves on the public ways near the path of pedestrians and in
5
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close proximity to facility entrances and driveways in order to effectively communicate
their message. On many occasions, clinic clients and/or their companions willingly
receive such oral communications
25. In order to effectively distribute literature to clinic clients and other
persons entering or exiting reproductive health care facilities, Plaintiffs and other pro-life
advocates must stand on public sidewalks and streets near the path of pedestrians so they
can proffer literature near the hands of passersby. On many occasions, clinic clients
and/or their companions willingly receive such literature.
26. Plaintiffs and other pro-life advocates often encounter opposition from
pro-choice advocates who surround, cluster, yell, make noise, mumble, and/or talk loudly
to clinic clients for the purpose of disrupting or drowning out pro-life speech and thwart
Plaintiffs’ efforts to distribute literature. When this happens, pro-life advocates cannot be
heard or distribute literature unless they are in close proximity to their intended audience.
27. Since the enactment of the Act, facility employees and/or agents stand idly
on the public sidewalks and streets inside the zone including its outermost edge.
Sometimes they smoke, drink coffee, or make phone calls and at other times they engage
in conversation with each other. They do this even when clinic clients are not present.
28. Sometimes persons accompanying women seeking abortions will come
out of the facility and linger within the area encompassed by the zone to smoke
cigarettes, make phone calls, or stand around for no apparent purpose.
29. On or about November 14, 2007, a sign was posted and a line was drawn
in yellow paint in a 35-foot radius around the entrances to Allston-Brighton Planned
Parenthood, 1055 Commonwealth Avenue, Boston, which is located at the corner of
6
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Commonwealth Avenue and Alcorn Street (hereafter, “Allston-Brighton Planned
Parenthood”). The marked zone covers all but 12 or so inches of the public sidewalk
directly in front of the facility and adjacent to Commonwealth Avenue. The zone extends
approximately 6 feet into Alcorn Street parallel to Commonwealth Avenue and
approximately 12 feet around the corner down Alcorn Street. In addition, there is a 35-
foot zone marked around the rear entrance to the facility. The rear zone encompasses
nearly the entire street (Gardner Street) adjacent to the rear entrance.
30. Immediately after significant snow accumulations the streets adjacent to
Allston-Brighton Planned Parenthood are plowed. The snow is pushed out of the street
and onto or near the public sidewalk. Often when this happens the piled snow directly in
front of Allston-Brighton Planned Parenthood occupies large portions of the public
sidewalk from the curb of the street inward, or portions of the street from the curb
outward. This area is within the marked zone or adjacent to it. When covered with snow,
street and sidewalk markings cannot be seen. Plaintiffs will be unable to access the
sidewalk for expressive activities after such storms if the zone remains in effect. Neither
will they be able to stand near the path of pedestrians.
31. Plaintiff McCullen has been offering information about alternatives to
abortion and providing offers of support to incoming clients and others at Allston-
Brighton Planned Parenthood, at which abortions are performed, for the past 7 years. On
numerous occasions women seeking abortion changed their minds as a result of
McCullen’s sidewalk counseling. McCullen’s experience has been that her counseling is
effective when offered to the recipient in a normal conversational tone and in a friendly
and gentle manner. She always tries to stand near the path of pedestrians.
7
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32. Plaintiff McCullen has degenerative arthritis in her left knee, which
severely limits her mobility. Since the Act took effect there have been several occasions
when clinic clients entered the marked zone at Allston-Brighton Planned Parenthood
from the side opposite where McCullen was standing. McCullen was unable to navigate
around the zone before the clients entered the facility and thus was unable to effectively
communicate her message.
33. Plaintiff Zarrella has been has been offering information about alternatives
to abortion and providing offers of support to incoming clients for the past 17 years. On
numerous occasions women seeking abortion changed their minds as a result of Zarrella’s
sidewalk counseling. Zarrella’s experience has been that her counseling is effective
when offered to the recipient in a normal conversational tone and in a friendly and caring
manner. She also has found that eye contact is essential to effective communication so
she tries to stand near the path of pedestrians.
34. Plaintiff Smith has peacefully prayed the Rosary at Allston-Brighton
Planned Parenthood for the past 15 years. When doing so he usually prays with others to
make his message more effective. Those praying the Rosary always have been peaceful
and have never blocked or impeded pedestrians or clinic clients. Prior to the Act’s
enactment Smith prayed the Rosary inside the zone. Since the Act’s adoption he has
refrained from doing so. Smith desires to pray inside the zone but fears arrest or citation
if he does so. In addition to prayer Smith displays a Crucifix.
35. Plaintiff Farrell engages in expressive activities at Women’s Health
Service, 822 Boylston Street, Brookline. On or about December 7, 2007, a zone was
marked in a 35-foot radius around the driveways of the office building housing Women’s
8
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Health Service. The zone encompasses the entire public sidewalk 35 feet from the outer
edge of the driveways as well as most of Reservoir Road directly in front of the
driveways.
36. The marked zone at this location makes it impossible for Farrell to stand
near the path of pedestrians or vehicles entering the driveways and entirely forecloses her
ability to leaflet to unwilling and even willing recipients. It also prevents her from
speaking to clinic clients in a normal conversational tone.
37. On December 27, 2007 Farrell called Lt. McDermott of the Brookline
Police Department and pointedly asked whether she would be subject to arrest if she
engaged in expressive activities inside the zone. Lt. McDermott responded by saying,
“You have ample room where you are. I wouldn’t push it if I were you.” Farrell
understood Lt. McDermott’s response as meaning she would be subject to arrest if she
exercised First Amendment rights inside the marked zone.
38. Plaintiff Cadin has been offering information and support at the Allston-
Brighton Planned Parenthood for approximately 2-½ years. He offers both men and
women alternatives to abortion through oral communications and by distributing
literature. Prior to enactment of the Act, Cadin would often stand next to men or women
who exited the facility to smoke cigarettes. This area is now located within the zone.
Cadin’s experience has been that his offers of help are effective when made in close
proximity to the recipient, with a smile, and in a calm and gentle demeanor which tends
to put both men and women at ease.
39. On several occasions since the Act took effect Plaintiffs McCullen and
Cadin were nearly struck by vehicles turning onto Alcorn Street from Commonwealth
9
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Avenue as they attempted to communicate with clinic clients without transgressing the
marked zone.
40. Public sidewalks and streets in Massachusetts are used by third parties not
before the Court (hereafter, “third parties”) for non-abortion related peaceful speech or
assembly activities such as labor picketing, anti-war and environmental demonstrations,
labor organizing, hawking newspapers or magazines, soliciting charitable contributions,
circulating petitions, panhandling, and spur-of-the-moment conversations with friends or
acquaintances. They also are used for such innocent non-speech activities as simple
loitering, waiting for public or private transportation, smoking cigarettes, or simply
strolling about without an intended destination.
41. Massachusetts citizens have been using the public streets and sidewalks to
debate political, social, and religious issues since well before the Founding of the United
States.
42. The Act prevents Plaintiffs and third parties from approaching both
willing and unwilling listeners within the zone.
43. The Act severely burdens Plaintiffs’ and third parties’ ability to win the
attention of both willing and unwilling listeners and, consequently, from reaching the
minds of their intended audience. Some people may have difficulty reading signs or
hearing clearly from 35 feet away or less.
44. The Act prevents Plaintiffs and third parties from engaging in oral
communications in a normal conversational tone with persons located in certain areas
within the zone.
10
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45. The Act severely burdens Plaintiffs’ and third parties’ ability to distribute
literature to willing recipients located in certain areas within the zone.
46. The Act forecloses altogether Plaintiffs’ and third parties’ ability to
distribute literature to unwilling recipients located in certain areas within the zone.
47. The Act prevents Plaintiffs and third persons from standing within the
zone near the path of oncoming pedestrians when proffering their material, thereby
making it difficult for pedestrians to accept such material.
48. The Act prevents Plaintiffs and third parties from approaching, in an
inoffensive way, persons within the zone for the purpose of offering information with a
view to influencing actions that may have an imminent and irreversible consequence.
49. The Act prevents both willing and unwilling listeners from receiving
certain oral communications, including pro-life communications, in a normal
conversational tone.
50. The Act prevents willing recipients from easily receiving certain types of
literature, including pro-life literature, if they are in close proximity to clinic entrances,
exits, and driveways.
51. The Act prevents Plaintiffs and third parties from utilizing large portions
of public sidewalks and streets adjacent to reproductive health care facilities for any
purpose other than reaching a destination other than such facility. Police do not permit
Plaintiffs to use the zone even for this purpose.
52. The Act by its terms exempts certain classes of individuals from its reach,
including health care facility employees and agents, thereby granting them free,
unrestricted, and unhindered access to the zone regardless of purpose.
11
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53. The Act by its terms exempts certain classes of individuals from its reach,
including health care facility employees and agents, thereby permitting them to freely
engage in all manner of expressive activity inside the zone.
54. The Act creates public safety hazards by forcing Plaintiffs and third
parties to stand or walk in portions of the public street occupied by vehicular traffic.
55. The Act creates public safety hazards by decreasing the flow of traffic and
creating congestion on those portions of public streets occupied by vehicular traffic.
56. The size and location of the zone places a substantial burden on Plaintiffs’
ability to orally communicate, leaflet, and display signs toward clinic clients and their
companions.
57. The size and location of the zone renders ineffective Plaintiffs’ attempts to
orally communicate, leaflet, and display signs toward their intended audience.
58. The size and location of the zone virtually eliminates Plaintiffs’ ability to
leaflet.
59. The legislative record is insufficient to support the draconian measures
contained in the Act that severely infringe First Amendment rights and constitutionally
protected liberty interests.
60. Since the Act was adopted to date Plaintiffs desired to engage in
distribution of literature, oral advocacy, and/or prayer on public streets and sidewalks
located within a 35-foot radius of entrances, exits, and driveways of reproductive health
care facilities but refrained from doing so out of fear they would have been arrested by
police for violating the Act.
12
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61. Plaintiffs have a present and future desire and intend to engage in
distribution of literature, oral advocacy, and/or prayer on public streets and sidewalks
located within a 35-foot radius of entrances, exits, and driveways of reproductive health
care facilities but will refrain from doing so out of fear they will be arrested by police for
violating the Act.
62. Plaintiffs have no plain, adequate, or complete remedy at law to redress
the foregoing violations of their constitutional rights and liberty interests, and this suit for
injunction and declaratory judgment is their only means of securing complete and
adequate relief. No other remedies would offer Plaintiffs substantial and complete
protection from Defendant’s unlawful laws, statutes, policies, and practices.
V. ALLEGATIONS OF LAW
63. The Act alleged herein is enforced by Defendant under the color and
pretense of the laws, statutes, and policies of the Commonwealth of Massachusetts.
64. The loss of First Amendment freedoms for even minimal periods of time
unquestionably constitutes irreparable injury.
65. The public ways affected by the Act are quintessential public forums for
expressive activities guaranteed by the First and Fourteenth Amendments to the United
States Constitution.
66. The right to engage in peaceful expressive activity, assembly, and
association in quintessential public forums is guaranteed by the Free Speech and
Assembly Clauses of the First and Fourteenth Amendments to the United States
Constitution.
13
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67. The right to peacefully distribute literature in quintessential public forums
is guaranteed by the Free Speech and Free Press Clauses of the First and Fourteenth
Amendments to the United States Constitution.
68. The right to engage in prayer, worship, and religious song in quintessential
public forums is guaranteed by the Free Speech and Free Exercise Clauses of the First
and Fourteenth Amendments to the United States Constitution.
69. The fact that certain messages may be offensive to their recipients does
not deprive them of constitutional protection.
70. The right to receive information is guaranteed by the First and Fourteenth
Amendments to the United States Constitution.
71. The Act infringes the rights of willing recipients to receive literature and
oral communications and therefore violates the First and Fourteenth Amendments to the
United States Constitution.
72. The right to travel and remain in the public place of one’s choice is an
aspect of personal liberty guaranteed by the Fourteenth Amendment to the United States
Constitution.
73. The right to loiter for innocent purposes on public ways is an aspect of
personal liberty guaranteed by the Fourteenth Amendment to the United States
Constitution.
74. The Act chills and deters fundamental constitutional rights of Plaintiffs
and third parties.
14
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FIRST CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Time, Place, Manner)
75. Paragraphs 1 through 74 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
76. Public streets and sidewalks are quintessential public forums for speech.
77. The government’s ability to restrict speech in public forums is very
limited.
78. The Act burdens substantially more speech than necessary to achieve a
substantial and legitimate government interest.
79. The Act is not a valid time, place, and manner regulation.
80. The Act is not narrowly tailored
81. The Act does not serve a significant governmental interest.
82. The Act does not leave open ample alternative avenues of communication.
83. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ affirmative rights to free speech secured by the First and Fourteenth
Amendments to the United States Constitution.
84. The existence and enforcement of the Act chills and deprives Plaintiffs of
their rights to free speech. Plaintiffs are suffering irreparable harm to their First
Amendment rights.
SECOND CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Substantial Overbreadth)
85. Paragraphs 1 through 74 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
86. Public streets and sidewalks are quintessential public forums for speech.
15
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87. The very existence of the Act may cause others not before the Court to
refrain from constitutionally protected speech or expression.
88. The Act is an overly-broad restriction on speech because it sweeps within
its ambit a substantial amount of constitutionally protected speech.
89. The Act burdens substantially more speech than is necessary to achieve a
substantial and legitimate government interest.
90. The Act on its face is an unconstitutional abridgement of rights to free
speech secured by the First and Fourteenth Amendments to the United States
Constitution.
91. The existence and enforcement of the Act chills and deprives Plaintiffs
and third parties not before the Court of their rights to free speech. Plaintiffs and third
parties are suffering irreparable harm to their First Amendment rights.
THIRD CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Prior Restraint)
92. Paragraphs 1 through 74 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
93. Public streets and sidewalks are quintessential public forums for speech.
94. The government’s ability to restrict speech in public forums is very
limited.
95. The Act completely bans Plaintiffs and third parties from engaging in any
expressive activities within the zone.
96. The Act forecloses Plaintiffs and third parties from orally communicating
to persons within the zone from a normal conversational distance.
16
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97. The Act forecloses Plaintiffs and third parties from standing within the
zone near the path of oncoming pedestrians and proffering their material.
98. The Act effectively forecloses Plaintiffs’ and third parties’ ability to orally
communicate with both willing and unwilling listeners located within the zone.
99. The Act effectively forecloses Plaintiffs’ and third parties’ ability to
distribute literature to both willing and unwilling recipients located within the zone.
100. The Act severely burdens Plaintiffs’ and third parties’ ability to effectively
display signs.
101. The Act does not leave open ample alternative avenues of communication.
102. The Act burdens substantially more speech than is necessary to achieve a
substantial and legitimate government interest.
103. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ affirmative rights to be free from impermissible prior restraint in violation of
the First and Fourteenth Amendments to the United States Constitution.
104. The existence and enforcement of the Act chills and deprives Plaintiffs
and third parties of their rights to free speech. Plaintiffs and third parties are suffering
irreparable harm to their First Amendment rights.
FOURTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Free Association – Free Exercise Hybrid)
105. Paragraphs 1 through 74 of the Complaint are incorporated herein, same as
though pleaded in full.
106. Public streets and sidewalks are quintessential public forums for speech.
17
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107. Peaceful expressive activities, including oral communications, literature
distribution, and sign display, are rights guaranteed by the Free Speech and Press Clauses
of the First and Fourteenth Amendments to the United States Constitution.
108. Peaceful use of public streets and sidewalks for the purpose of seeking
political, social, moral, or religious change is a right guaranteed by the Free Assembly
Clause of the First and Fourteenth Amendments to the United States Constitution.
109. Peaceful grouping of two or more persons for the purpose of enhancing
communicative efforts, i.e., the right to associate, is guaranteed by First and Fourteenth
Amendments to the United States Constitution.
110. Peaceful public prayer, singing, and worship, and display of religious
articles are rights guaranteed by the Free Exercise Clause of the First and Fourteenth
Amendments to the United States Constitution.
111. Infringement of the right to free exercise of religion exercised in
combination of other fundamental constitutional rights subjects the Act to strict scrutiny
review.
112. The Act does not serve a compelling state interest nor is it the least
restrictive means of achieving the State’s asserted interest.
113. The existence and enforcement of the Act chills and deprives Plaintiffs of
their rights to free speech, free press, free assembly, and free exercise of religion.
Plaintiffs are suffering irreparable harm to their First Amendment rights.
FIFTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech –Viewpoint Discrimination)
114. Paragraphs 1 through 74 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
18
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115. The Act is a content-based restriction on speech.
116. The Act does not serve a compelling state interest.
117. The Act is not the least restrictive means of achieving the State’s asserted
interest.
118. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ affirmative rights to free speech secured by the First and Fourteenth
Amendments to the United States Constitution.
119. The existence and enforcement of the Act chills and deprives Plaintiffs
and third parties of their rights to free speech. Plaintiffs and third parties are suffering
irreparable harm to their First Amendment rights.
SIXTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Due Process - Vagueness)
120. Paragraphs 1 through 74 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
121. Public streets and sidewalks are quintessential public forums for speech.
122. Public streets and sidewalks are held in the public trust for use by all law-
abiding citizens.
123. The Act excludes from its reach “persons using the public sidewalk or
street right-of-way adjacent to such facility solely for the purpose of reaching a
destination other than such facility.”
124. The Act does not give fair notice to citizens.
125. The Act does not provide minimal standards to guide law enforcement.
19
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126. Whether a person is using a public sidewalk “solely” for the purpose of
reaching a destination other than a reproductive health care facility cannot be known by a
law enforcement officer.
127. Because a police officer cannot know with certainty whether a person is
using a public sidewalk or street “solely” for the purpose of reaching a destination other
than a reproductive health care facility, the Act necessarily entrusts lawmaking to the
moment-to-moment judgment of the policeman on his beat.
128. Because a police officer cannot know with certainty whether a person is
using a public sidewalk or street “solely” for the purpose of reaching a destination other
than a reproductive health care facility, the Act authorizes and encourages arbitrary and
discriminatory enforcement.
129. The Act is impermissibly vague because it fails to establish standards for
the police that are sufficient to guard against the arbitrary and discriminatory suppression
of First Amendment rights.
130. The Act is impermissibly vague because it fails to establish standards for
the police that are sufficient to guard against arbitrary deprivation of liberty interests.
131. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ and third parties’ affirmative rights in violation of the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.
SEVENTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Due Process – Liberty Interest)
132. Paragraphs 1 through 74 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
20
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133. Public streets and sidewalks are held in the public trust for use by all law-
abiding citizens.
134. The right of an individual to remain in the public place of his choice is a
liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
135. The freedom to loiter for innocent purposes is a liberty interest protected
by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
136. The Act denies Plaintiffs and third persons their liberty interests in the use
of public streets and sidewalks for innocent purposes and their rights to intrastate travel in
violation of the Fourteenth Amendment to the United States Constitution.
137. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ and third parties’ liberty interests in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
EIGHTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Equal Protection)
138. Paragraphs 1 through 74 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
139. Public streets and sidewalks are quintessential public forums for the
exercise of constitutionally protected expressive activities and certain liberty interests.
140. The right of an individual to remain in the public place of his choice is a
liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
21
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141. The Act prohibits most citizens from accessing the zone for all purposes
other than to reach a destination other than the reproductive health care facility located
within it.
142. The Act, by its express terms, exempts from its reach certain defined
classes of persons thereby permitting them to freely engage in all manner of expressive
activity and liberty interests pertaining to the public ways.
143. With respect to the exercise of expressive activity and liberty interests,
Plaintiffs and third parties are similarly-situated to exempted classifications yet treated in
a dissimilar manner.
144. The Act impinges fundamental rights and liberty interests and therefore is
subject to strict scrutiny review.
145. The Commonwealth cannot demonstrate a compelling interest for the
differing classifications nor is the Act the least restrictive means of achieving its asserted
interest.
146. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ and third parties’ rights to equal protection of the law as guaranteed by the
Fourteenth Amendment to the United States Constitution
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that the Court:
a. Assume jurisdiction over this action;
b. Declare that Mass. Gen. L. chapter 266: Section 120E1/2(b) is
unconstitutional on its face;
22
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c. Declare that Mass. Gen. L. chapter 266: Section 120E1/2(b) is
unconstitutional as applied to Plaintiffs’ expressive activities at Allston-Brighton Planned
Parenthood and Women’s Health Service;
d. Enter preliminary and permanent injunctions enjoining Defendant from
enforcing Mass. Gen. L. chapter 266: Section 120E1/2(b);
e. Award Plaintiffs their costs of litigation, including reasonable attorneys’
fees and expenses, pursuant to 42 U.S.C. § 1988; and
f. Grant such other and further relief as the Court deems necessary and proper.
FOR THE PLAINTIFFS
/s/ Philip D. Moran Philip D. Moran, MA Bar # 353920 Philip D. Moran P.C. 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: [email protected] /s/ Michael J. DePrimo Michael J. DePrimo, CT Bar # 402211 Pending admission pro hac vice Attorney at Law
778 Choate Avenue Hamden, Connecticut 06518 Tel: (203) 281-1496 Fax: (203) 281-1496 Email: [email protected] Benjamin W. Bull, AZ Bar # 009940 Pending admission pro hac vice Alliance Defense Fund 15100 N. 90th Street Scottsdale, Arizona 85260 Tel: (480) 444-0020 Fax: (480) 444-0028 Email: [email protected]
23
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Kevin H. Theriot, KS Bar # 21565 Pending admission pro hac vice Alliance Defense Fund 15192 Rosewood Leawood, Kansas 66224 Tel: (913) 685-8000 Fax: (913) 685-8001 Email: [email protected]
Timothy D. Chandler, CA Bar # 234325 Pending admission pro hac vice Alliance Defense Fund 101 Parkshore Drive, Suite 100 Folsom, California 95630 Tel: (916) 932-2850 Fax: (916) 932-2851 Email: [email protected]
Case 1:08-cv-10066-JLT Document 1-6 Filed 01/16/08 Page 24 of 24
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION ELEANOR McCULLEN, JEAN ) BLACKBURN ZARRELLA, GREGORY A. ) SMITH, CARMEL FARRELL, ERIC CADIN, ) CYRIL SHEA, M.D., DONALD GOLDEN, ) NANCY CLARK, MARK BASHOUR, and ) NOREEN BEEBE, ) ) Civ. No. 1:08-cv-10066-JLT Plaintiffs, ) ) v. ) ) MARTHA COAKLEY, Attorney General for the ) Commonwealth of Massachusetts; DANIEL F. ) CONLEY, District Attorney for Suffolk County, ) Massachusetts; WILLIAM R. KEATING, District ) Attorney for Norfolk County, Massachusetts; ) WILLIAM M. BENNETT, District Attorney for ) Hampden County, Massachusetts; and JOSEPH D. ) EARLY JR., District Attorney for Worcester ) County, Massachusetts, ) ) Defendants. ) ________________________________________________________________________
[PROPOSED] AMENDED COMPLAINT FOR CIVIL RIGHTS VIOLATIONS, DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF
Deleted: A copy of the Act is attached hereto as Ex. 1.
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2
2. The Act is an unconstitutional regulation designed and intended to ban
virtually all citizens from engaging in fundamental rights and liberties on significant
portions of public sidewalks and streets adjacent to non-hospital abortion clinics. It
essentially and unlawfully privatizes public ways held in the public trust for use by all
citizens.
3. The Act chills and deprives Plaintiffs and third parties from engaging in
expressive activities guaranteed by the First and Fourteenth Amendments to the United
States Constitution. Preliminary and permanent injunctive relief, as well as declaratory
relief, are warranted.
II. JURISDICTION AND VENUE
4. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C.
§§ 1331 and 1343, and 42 U.S.C. § 1983. The Court has jurisdiction over the request for
declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
5. Venue is proper in the District of Massachusetts, Boston Division,
pursuant to 28 U.S.C. § 1391(b)(1).
III. IDENTIFICATION OF PLAINTIFFS
6. Plaintiff Eleanor McCullen is a citizen of the United States and a resident
of Chestnut Hill, Massachusetts. She is a 74 year-old mother and grandmother. She has
never been arrested.
7. Plaintiff Jean Blackburn Zarrella is a citizen of the United States and a
resident of Lynnfield, Massachusetts. She is an 84 year-old mother and grandmother.
She has never been arrested.
Deleted: is
Deleted: ) because the claims arise in that district and a majority of the parties reside in that district.
Deleted: PARTIES
Deleted: 71
Deleted: 81
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8. Plaintiff Gregory A. Smith is a citizen of the United States and a resident
of Stoughton, Massachusetts. He is a 77 year-old father and grandfather.
9. Plaintiff Carmel Farrell is a citizen of the United States and a resident of
Plymouth, Massachusetts. She is a 64 year-old mother and grandmother. She has never
been arrested.
10. Plaintiff Eric Cadin is a citizen of the United States and a resident of
Weymouth, Massachusetts. He is a 30 year-old single adult male who is studying pre-
med at Harvard University. He has never been arrested.
11. Plaintiff Cyril Shea, M.D. is a citizen of the United States and a resident of
West Springfield, Massachusetts. He is 83 years old and a retired orthopedic surgeon.
He has never been arrested.
12. Plaintiff Donald Golden is a citizen of the United States and a resident of
Longmeadow, Massachusetts. He is 60 years old. He has never been arrested.
13. Plaintiff Nancy Clark is a citizen of the United States and a resident of
Worcester, Massachusetts. She is 48 years old and the mother of nine (9) children. She
has never been arrested.
14. Plaintiff Mark Bashour is a citizen of the United States and a resident of
Northboro, Massachusetts. He is 50 years old.
15. Plaintiff Noreen Beebe is a citizen of the United States and a resident of
Florence, Massachusetts. She a 62 year old mother and grandmother. She has never
been arrested.
IV. IDENTIFICATION OF DEFENDANTS
Deleted: 74
Deleted: 61
Deleted: 27
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16. Defendant Martha Coakley is Attorney General for the Commonwealth of
Massachusetts and, in that capacity, is the chief law enforcement officer for the
Commonwealth. She is charged with overseeing prosecutions for violations of the Act.
She is sued in her official capacity only.
17. Defendant Daniel F. Conley is district attorney for Suffolk County,
Massachusetts and, in that capacity, is charged with enforcing state law in Boston,
Massachusetts. He is sued in his official capacity only.
18. Defendant William R. Keating is district attorney for Norfolk County,
Massachusetts and, in that capacity, is charged with enforcing state law in Brookline,
Massachusetts. He is sued in his official capacity only.
19. Defendant William M. Bennett is district attorney for Hampden County,
Massachusetts and, in that capacity, is charged with enforcing state law in Springfield,
Massachusetts. He is sued in his official capacity only.
20. Defendant Joseph D. Early Jr. is district attorney for Worcester County,
Massachusetts and, in that capacity, is charged with enforcing state law in Worcester
Massachusetts. He is sued in his official capacity only.
V. ALLEGATIONS OF FACT
21. Subsection (b) of the Act states,
No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of thirty-five feet of any portion of an entrance to, exit from, or driveway of a reproductive health care facility, or within the area within a rectangle created by extending the outside boundaries of any entrance to, exit from, or driveway of, a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway. This subsection shall not apply to the following:
Deleted: IV.
Formatted: Left
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persons entering or leaving such facility;
employees or agents of such facility acting within the scope of their employment;
law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment;
persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility.
22. Subsection (c) of the Act provides that subsection (b) shall take effect
during a facility’s business hours and if the area contained within the radius and rectangle
described in said subsection (b) is clearly marked and posted.
23. Subsection (d) of the Act makes criminal a violation of subsection (b) of
same, providing that,
[w]hoever knowingly violates this section shall be punished, for the first offense, by a fine of not more than $500 or not more than three months in a jail or house of correction, or by both such fine and imprisonment, and for each subsequent offense, by a fine of not less than $500 and not more than $5,000 or not more than two and one-half years in a jail or house of correction, or both such fine and imprisonment.
24. Subsection (e) of the Act makes it unlawful to obstruct, detain, hinder,
impede or block another person’s entry to or exit from a reproductive health care facility.
Plaintiffs do not challenge this subsection.
25. The Act was adopted on a purported emergency basis and became
effective on November 13, 2007, the date the Act was signed by the Governor.
26. The stated underlying purpose for the Act, as set forth in the preamble to
the bill introduced and numbered Senate Bill 1353, is to protect public safety by creating Deleted: comply with the State’s fundamental obligation to preserve
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clearly defined boundaries to improve the ability of safety officials to protect the public --
specifically pedestrians travelling peacefully on Massachusetts streets and sidewalks.
27. By its plain terms, the Act applies only to reproductive health care
facilities that perform abortions. Hospitals in which abortions are performed are excluded
from the Act. Likewise, facilities that do not offer abortions, but offer help with
adoption, parenting, or any other alternative to abortion are not included within the Act.
28. On January 25, 2008, Assistant Attorney General Maura T. Healey
authored a letter on behalf of Defendant Attorney General Coakley to guide law
enforcement and others concerning the reach of the Act.
29. The letter states that the Act creates fixed “no enter zones” that apply to all
persons except those in four specified categories. The letter further states that the
exemptions contained in the fixed buffer statute allow people to walk through the zone so
long they do not “express their views about abortion or engage in any other partisan
speech.”
30. At oral argument in the First Circuit, the Attorney General’s office
publicly conceded that the Act could prohibit a citizen from wearing a Cleveland Indians
shirt while walking down the sidewalk in front of an abortion clinic.
31. The Attorney General’s interpretation prohibits a citizen from wearing an
“Obama for President” t-shirt and walking on the public sidewalk in front of an abortion
clinic. Failure to conceal the shirt could result in imprisonment.
32. The Attorney General’s interpretation prohibits two friends from
discussing Elena Kagan's Supreme Court nomination while walking in front of an
abortion clinic. Failure to cease this conversation could result in imprisonment.
Deleted: See Senate Bill 1353, attached hereto as Ex. 2.
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33. A sign is posted and line drawn in yellow paint in a 35-foot radius around
the front entrance to Allston-Brighton Planned Parenthood, 1055 Commonwealth
Avenue, Boston, which is located at the corner of Commonwealth Avenue and Alcorn
Street (hereafter, “Allston-Brighton Planned Parenthood”). The marked zone covers all
but approximately 12 inches of the public sidewalk directly in front of the facility and
adjacent to Commonwealth Avenue. The zone extends approximately 6 feet into Alcorn
Street parallel to Commonwealth Avenue and approximately 12 feet around the corner
down Alcorn Street. In addition, there is a sign posted and a 35-foot zone marked around
the rear entrance to the facility. The rear zone encompasses nearly the entire street
(Gardner Street) adjacent to the rear entrance.
34. Signs are posted and two zones marked - each with a 35-foot radius -
around two passageways alongside the building housing Women’s Health Services, 111
Harvard Street, Brookline (hereafter, “Women’s Health Services”). One passageway
appears to be a driveway leading into the parking lot of 111 Harvard Street, and the other
a private street called Harvard Court that leads to buildings behind 111 Harvard Street.
35. These two zones encompass nearly 182.5 linear feet of the public sidewalk
in front of the building housing Women’s Health Services. The zones extend to the
double-yellow line in the middle of Harvard Street, a busy main thoroughfare.
36. Signs are posted and five zones marked - each with a 35-foot radius –
around the driveways of a three-building medical office complex that houses Planned
Parenthood, 3550 Main Street, Springfield (hereafter, “Springfield Planned Parenthood”).
The buffer zones occupy approximately 500 linear feet of the public sidewalk along Main
Street and Wason Avenue. Each of the zones extends to the double-yellow line in the
Moved (insertion) [1]
Moved (insertion) [2]
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middle of Main Street or Wason Avenue. The entrances to the building housing
Springfield Planned Parenthood are set back 335 feet from Main Street and 220 feet from
Wason Avenue.
37. A bus stop is located near one of the Main Street buffer zones. Sometimes
people waiting for the bus sit on the grass under a tree located within the buffer zone.
38. Signs are posted and two zones marked - each with a 35-foot radius –
around the purported driveways of the building that houses Planned Parenthood, 470
Pleasant Street, Worcester (hereafter, “Worcester Planned Parenthood”). One zone is
located on Pleasant Street and the other on Dewey Street. The buffer zones occupy
approximately 177.3 linear feet of the public sidewalk along Pleasant and Dewey Streets.
Each zone occupies a large portion of the public street in addition to public sidewalks.
The Pleasant Street zone is marked adjacent to an area that purports to be a driveway
entrance but is not used for that purpose. The doorway entrance to Planned Parenthood at
this location is 63.3 feet from the nearest public street curb.
39. Plaintiffs are pro-life advocates motivated to oppose the practice of
abortion because of their religious and/or moral beliefs that induced abortion is the
deliberate destruction of innocent human life. Plaintiffs regularly travel to the public
ways adjacent to reproductive health care facilities in Massachusetts to peacefully
provide information about abortion alternatives and to offer assistance and support to
persons entering and/or exiting the facility.
40. As part of their ministry and/or peaceful pro-life advocacy, Plaintiffs offer
secular and religious literature to persons approaching reproductive health care facilities
(hereinafter “clinic clients”). Plaintiffs do this in an effort to educate clinic clients and
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others that alternatives to abortion are available, including adoption and other means of
support, including financial and/or emotional support.
41. In addition to distributing literature, one or more Plaintiffs engage in other
peaceful expressive activities on the public ways adjacent to reproductive health care
facilities including oral advocacy, counseling, and prayer.
42. Plaintiffs desire to orally communicate with clinic clients and passersby
from a distance in which they can speak in a normal conversational tone and make eye
contact. Plaintiffs wish to avoid raising their voices or speaking from long distances.
43. Because in most instances they cannot identify clinic clients until they
actually approach the reproductive health care facility, Plaintiffs and other pro-life
advocates must station themselves on the public ways near the path of pedestrians and in
close proximity to facility entrances and driveways in order to effectively communicate
their message. On many occasions, clinic clients and/or their companions willingly
receive such oral communications.
44. In order to effectively distribute literature to clinic clients and other
persons entering or exiting reproductive health care facilities, Plaintiffs and other pro-life
advocates must stand on public sidewalks and streets near the path of pedestrians so they
can proffer literature near the hands of passersby. On many occasions, clinic clients
and/or their companions willingly receive such literature.
45. Plaintiffs and other pro-life advocates often encounter opposition from
pro-choice advocates who surround, cluster, yell, make noise, mumble, and/or talk loudly
to clinic clients for the purpose of disrupting or drowning out pro-life speech and thwart
Plaintiffs’ efforts to distribute literature. Some of these advocates are employees and/or
Deleted: <#>Pro-life advocates have been educating and counseling men and women on the public ways adjacent to reproductive health care facilities in Massachusetts since 1983 or before. ¶
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agents of reproductive health care facilities. When this happens, pro-life advocates
cannot be heard or distribute literature unless they are in close proximity to their intended
audience.
46. After enactment of the Act, facility employees and/or agents sometimes
stand idly on the public sidewalks and streets inside the zone including its outermost
edge. Sometimes they smoke, drink coffee, or make phone calls and at other times they
engage in conversation with each other. They have done this even when clinic clients
were not present.
47. Sometimes persons accompanying women seeking abortions come out of
the facility and linger within the area encompassed by the zone to smoke cigarettes, make
phone calls, or stand around for no apparent purpose.
48.
49. Immediately after significant snow accumulations, the streets adjacent to
Allston-Brighton Planned Parenthood are plowed. The snow is pushed out of the street
and onto or near the public sidewalk. Often when this happens the piled snow directly in
front of Allston-Brighton Planned Parenthood occupies large portions of the public
sidewalk from the curb of the street inward, or portions of the street from the curb
outward. This area is within the marked zone or adjacent to it. When covered with snow,
street and sidewalk markings cannot be seen.
50. Plaintiff McCullen has been offering information about alternatives to
abortion and providing offers of support to incoming clients and others at Allston-
Brighton Planned Parenthood, at which abortions are performed, for the past 9 years. On
numerous occasions women seeking abortion changed their minds as a result of
Deleted: Since the
Deleted: do
Deleted: are
Deleted: will
Deleted: On or about November 14, 2007, a sign was posted and a line was drawn in yellow paint in a 35-foot radius around the entrances to Allston-Brighton Planned Parenthood, 1055 Commonwealth Avenue, Boston, which is located at the corner of Commonwealth Avenue and Alcorn Street (hereafter, “Allston-Brighton Planned Parenthood”). The marked zone covers all but 12 or so
Moved up [1]: inches of the public sidewalk directly in front of the facility and adjacent to Commonwealth Avenue. The zone extends approximately 6 feet into Alcorn Street parallel to Commonwealth Avenue and approximately 12 feet around the corner down Alcorn Street.
Deleted: In addition, there is a
Moved up [2]: 35-foot zone marked around the rear entrance to the facility. The rear zone encompasses nearly the entire street (Gardner Street) adjacent to the rear entrance.¶
Deleted: Plaintiffs will be unable to access the sidewalk for expressive activities after such storms if the zone remains in effect. Neither will they be able to stand near the path of pedestrians.
Deleted: 7
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McCullen’s sidewalk counseling. McCullen’s experience has been that her counseling is
effective when offered to the recipient in a normal conversational tone and in a friendly
and gentle manner. She always tries to stand near the path of pedestrians.
51. Since the Act took effect there have been several occasions when clinic
clients entered the marked zone at Allston-Brighton Planned Parenthood from the side
opposite where McCullen was standing. McCullen was unable to navigate around the
zone before the clients entered the facility and thus was unable to effectively
communicate her message.
52. Plaintiff Zarrella has been has been offering information about alternatives
to abortion and providing offers of support to incoming clients for the past 19 years. On
numerous occasions women seeking abortion changed their minds as a result of Zarrella’s
sidewalk counseling. Zarrella’s experience has been that her counseling is effective
when offered to the recipient in a normal conversational tone and in a friendly and caring
manner. She also has found that eye contact is essential to effective communication so
she tries to stand near the path of pedestrians. Since the Act took effect, the buffer zone
has impeded her ability to communicate in this manner.
53. Plaintiff Smith has peacefully prayed the Rosary at Allston-Brighton
Planned Parenthood for the past 17 years. When doing so he usually prays with others to
make his message more effective. Those praying the Rosary always have been peaceful
and have never blocked or impeded pedestrians or clinic clients. Prior to the Act’s
enactment Smith prayed the Rosary inside the zone. Since the Act’s adoption he has
refrained from doing so. Smith desires to pray inside the zone but fears arrest or citation
if he does so. In addition to prayer Smith displays a Crucifix.
Deleted: Plaintiff McCullen has degenerative arthritis in her left knee, which severely limits her mobility.
Deleted: 17
Deleted:
Deleted: 15
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54. Plaintiff Cadin has been offering information and support at the Allston-
Brighton Planned Parenthood for approximately 4-½ years. He offers both men and
women alternatives to abortion through oral communications and by distributing
literature. Prior to enactment of the Act, Cadin would often stand next to men or women
who exited the facility to smoke cigarettes. This area is now located within the zone.
Cadin’s experience has been that his offers of help are effective when made in close
proximity to the recipient, with a smile, and in a calm and gentle demeanor which tends
to put both men and women at ease.
55. On several occasions since the Act took effect Plaintiffs McCullen and
Cadin were nearly struck by vehicles turning onto Alcorn Street from Commonwealth
Avenue as they attempted to communicate with clinic clients without transgressing the
marked zone.
56. Plaintiff Farrell engages in expressive activities at Women’s Health
Services. The two marked zones at this location make it impossible for Farrell to stand
near the path of pedestrians or vehicles entering the driveways, and entirely forecloses
her ability to leaflet to unwilling and even willing recipients. The marked zones also
prevent her from speaking to clinic clients in a normal conversational tone.
57. Plaintiffs Shea, Golden, and Beebe engage in peaceful expressive
activities at Springfield Planned Parenthood. The five marked zones at this location
make it impossible for them to stand near the path of pedestrians or vehicles entering the
driveways, and entirely forecloses their ability to leaflet to unwilling and even willing
recipients. The marked zones also prevent them from speaking to clinic clients in a
normal conversational tone or from a normal conversational distance.
Deleted: <#>Plaintiff Farrell engages in expressive activities at Women’s Health Service, 822 Boylston Street, Brookline. On or about December 7, 2007, a zone was marked in a 35-foot radius around the driveways of the office building housing Women’s Health Service. The zone encompasses the entire public sidewalk 35 feet from the outer edge of the driveways as well as most of Reservoir Road directly in front of the driveways. ¶<#>The marked zone at this location makes it impossible for Farrell to stand near the path of pedestrians or vehicles entering the driveways and entirely forecloses her ability to leaflet to unwilling and even willing recipients. It also prevents her from speaking to clinic clients in a normal conversational tone. ¶<#>On December 27, 2007 Farrell called Lt. McDermott of the Brookline Police Department and pointedly asked whether she would be subject to arrest if she engaged in expressive activities inside the zone. Lt. McDermott responded by saying, “You have ample room where you are. I wouldn’t push it if I were you.” Farrell understood Lt. McDermott’s response as meaning she would be subject to arrest if she exercised First Amendment rights inside the marked zone.¶
Deleted: 2
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58. Since the Act took effect, cars on Wason Ave. sometimes swerve to avoid
the buffer zone line, which extends into and is painted on the street, endangering public
safety.
59. Plaintiffs Clark and Bashour engage in peaceful expressive activities at
Worcester Planned Parenthood. The two marked zones at this location make it
impossible for them to stand near the path of pedestrians or vehicles entering the
driveways, and entirely forecloses their ability to leaflet to unwilling and even willing
recipients. The marked zones also prevent them from speaking to clinic clients in a
normal conversational tone.
60. Public sidewalks and streets in Massachusetts are used by third parties not
before the Court (hereafter, “third parties”) for non-abortion related peaceful speech or
assembly activities such as the wearing of “partisan” t-shirts and buttons, the wearing of
Cleveland Indians t-shirts, labor picketing, anti-war and environmental demonstrations,
labor organizing, hawking newspapers or magazines, soliciting charitable contributions,
circulating petitions, panhandling, and spur-of-the-moment conversations with friends or
acquaintances. They also are used for such innocent non-speech activities as simple
loitering, waiting for public or private transportation, smoking cigarettes, or simply
strolling about without an intended destination.
61. Massachusetts citizens have been using the public streets and sidewalks to
debate political, social, and religious issues since well before the Founding of the United
States.
62. The Act prevents Plaintiffs and third parties from approaching both
willing and unwilling listeners within the zone.
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63. The Act severely burdens Plaintiffs’ and third parties’ ability to win the
attention of both willing and unwilling listeners and, consequently, from reaching the
minds of their intended audience. Some people may have difficulty reading signs or
hearing clearly from 35 feet away or less.
64. The Act prevents Plaintiffs and third parties from engaging in oral
communications in a normal conversational tone with persons located in certain areas
within or without the zone.
65. The Act severely burdens Plaintiffs’ and third parties’ ability to distribute
literature to willing recipients located in certain areas within or without the zone.
66. The Act forecloses altogether Plaintiffs’ and third parties’ ability to
distribute literature to unwilling recipients located in certain areas within or without the
zone.
67. The Act prevents Plaintiffs and third persons from standing within the
zone near the path of oncoming pedestrians when proffering their material, thereby
making it difficult for pedestrians to accept such material.
68. The Act prevents Plaintiffs and third parties from approaching, in an
inoffensive way, persons within the zone for the purpose of offering information with a
view to influencing actions that may have an imminent and irreversible consequence.
69. The Act prevents both willing and unwilling listeners from receiving
certain oral communications, including pro-life communications, in a normal
conversational tone.
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70. The Act prevents willing recipients from easily receiving certain types of
literature, including pro-life literature, if they are in close proximity to clinic entrances,
exits, and driveways.
71. The Act prevents Plaintiffs and third parties from utilizing large portions
of public sidewalks and streets adjacent to reproductive health care facilities for any
purpose other than reaching a destination other than such facility.
72. The Act by its terms exempts certain classes of individuals from its reach,
including reproductive health care facility employees and agents, thereby granting them
free, unrestricted, and unhindered access to the zone regardless of purpose.
73. The Act by its terms exempts certain classes of individuals from its reach,
including health care facility employees and agents, thereby permitting them to freely
engage in all manner of expressive activity inside the zone.
74. The Act creates public safety hazards by forcing Plaintiffs and third
parties to stand or walk in portions of the public street occupied by vehicular traffic.
75. The Act creates public safety hazards by decreasing the flow of traffic and
creating congestion on those portions of public streets occupied by vehicular traffic.
76. In each of the challenged locations, the size and location of the zone(s)
place a substantial burden on Plaintiffs’ ability to orally communicate, leaflet, and display
signs toward clinic clients and their companions.
77. In each of the challenged locations, the size and location of the zone(s)
render ineffective Plaintiffs’ attempts to orally communicate, leaflet, and display signs
toward their intended audience.
Deleted: Police do not permit Plaintiffs to use the zone even for this purpose.
Deleted: The
Deleted: places
Deleted: The
Deleted: renders
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78. In each of the challenged locations, the size and location of the zone(s)
virtually eliminate Plaintiffs’ ability to leaflet.
79. The legislative record is insufficient to support the draconian measures
contained in the Act that severely infringe First Amendment rights and constitutionally
protected liberty interests.
80. Many reproductive health care facilities regularly videotape activities in
front of their buildings.
81. On information and belief, from 2000-2007, none of the Defendants
obtained even a single conviction under the prior version of the Act.
82. On information and belief, from 2000 to the present, none of the
Defendants has prosecuted or convicted a single person for violating the federal FACE
law.
83. On information and belief, from 2000 to the present, none of the
Defendants has prosecuted a single person for obstructing access to any reproductive
health care facility.
84. Since the Act was adopted, Plaintiffs desired to engage in distribution of
literature, oral advocacy, and/or prayer on public streets and sidewalks located within a
35-foot radius of entrances, exits, and driveways of reproductive health care facilities but
refrained from doing so out of fear they would have been arrested and prosecuted for
violating the Act.
85. Each of the plaintiffs has a present and future desire and intention to
engage in distribution of literature, oral advocacy, and/or prayer on public streets and
sidewalks located within a 35-foot radius of entrances, exits, and driveways of
Deleted: The
Deleted: eliminates
Deleted: to date
Deleted: by police
Deleted: Plaintiffs have
Deleted: intend
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reproductive health care facilities but fears he or she will be arrested and prosecuted for
violating the Act if they do so.
86. Plaintiffs have no plain, adequate, or complete remedy at law to redress
the foregoing violations of their constitutional rights and liberty interests, and this suit for
injunction and declaratory judgment is their only means of securing complete and
adequate relief. No other remedies would offer Plaintiffs substantial and complete
protection from Defendants’ unlawful laws, statutes, policies, and practices.
VI. ALLEGATIONS OF LAW
87. The Act alleged herein is enforced or enforceable by Defendants under the
color and pretense of the laws, statutes, and policies of the Commonwealth of
Massachusetts and/or its political subdivisions.
88. The loss of First Amendment freedoms for even minimal periods of time
constitutes irreparable injury.
89. The public ways affected by the Act are quintessential public forums for
expressive activities guaranteed by the First and Fourteenth Amendments to the United
States Constitution.
90. The right to engage in peaceful expressive activity, assembly, and
association in quintessential public forums is guaranteed by the Free Speech and
Assembly Clauses of the First and Fourteenth Amendments to the United States
Constitution.
91. The right to peacefully distribute literature in quintessential public forums
is guaranteed by the Free Speech and Free Press Clauses of the First and Fourteenth
Amendments to the United States Constitution.
Deleted: will refrain from doing so out of fear they
Deleted: by police
Deleted: .
Deleted: Defendant’s
Deleted: V.
Formatted: Left, Indent: Left: 1.5"
Deleted: Defendant
Deleted: unquestionably
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92. The right to engage in prayer, worship, and religious song in quintessential
public forums is guaranteed by the Free Speech and Free Exercise Clauses of the First
and Fourteenth Amendments to the United States Constitution.
93. The fact that certain messages may be offensive to some of their recipients
does not deprive them of constitutional protection.
94. The right to receive information is guaranteed by the First and Fourteenth
Amendments to the United States Constitution.
95. The Act infringes the rights of willing recipients to receive literature and
oral communications and therefore violates the First and Fourteenth Amendments to the
United States Constitution.
96. The right to travel and remain in the public place of one’s choice is an
aspect of personal liberty guaranteed by the Fourteenth Amendment to the United States
Constitution.
97. The right to loiter for innocent purposes on public ways is an aspect of
personal liberty guaranteed by the Fourteenth Amendment to the United States
Constitution.
98. Abortion speech is core political speech.
99. The First Amendment forbids government suppression of political speech
based on the speaker’s identity.
100. The Act unconstitutionally makes persons falling within its exemptions -
including clinic employees and agents - preferred speakers, while making Plaintiffs non-
preferred speakers.
101. The Act suppresses political speech on the basis of speaker identity.
Deleted: chills
Deleted: deters fundamental constitutional rights of
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102. Defendant Coakley purports to interpret the Act to apply to clinic
employees and agents within the scope of their employment if they engage in speech with
a particular content, namely speech related to abortion or other “partisan” issues.
103. The First Amendment does not permit a facially unconstitutional statute to
be upheld based on a governmental promise of prosecutorial evenhandedness.
104. The plain text of the Act grants clinic employees and agents exemption
and, therefore, an absolute defense to prosecution.
105. Defendant Coakley’s broadening of the statute through administrative
interpretation violates the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
FIRST CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Time, Place, Manner)
106. Paragraphs 1 through 104 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
107. Public streets and sidewalks are quintessential public forums for speech.
108. The government’s ability to restrict speech in public forums is very
limited.
109. The Act burdens substantially more speech than necessary to achieve a
substantial and legitimate government interest.
110. The Act is not a valid time, place, and manner regulation.
111. The Act is not narrowly tailored
112. The Act does not serve a significant governmental interest.
113. The Act does not leave open ample alternative avenues of communication.
Deleted: third parties.
Deleted: ¶¶
Deleted: 74
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114. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ affirmative rights to free speech secured by the First and Fourteenth
Amendments to the United States Constitution.
115. The existence and enforcement of the Act chills and deprives Plaintiffs of
their rights to free speech. Plaintiffs are suffering irreparable harm to their First
Amendment rights.
SECOND CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Substantial Overbreadth)
116. Paragraphs 1 through 104 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
117. Public streets and sidewalks are quintessential public forums for speech.
118. The very existence of the Act may cause others not before the Court to
refrain from constitutionally protected speech or expression.
119. The Act restricts constitutionally-protected peaceful speech by the
Plaintiffs, even when it does not threaten the alleged government interests.
120. The Act is an overly-broad restriction on speech because it sweeps within
its ambit a substantial amount of constitutionally protected speech.
121. The Act burdens substantially more speech than is necessary to achieve a
substantial and legitimate government interest.
122. The Act on its face and as applied is an unconstitutional abridgement of
rights to free speech secured by the First and Fourteenth Amendments to the United
States Constitution.
123. The Attorney General's guidance letter purports to criminalize the conduct
of anyone who discusses abortion or engages in any “partisan speech” while passing
Deleted: 74
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though the buffer zone, and could cause an individual to be prosecuted merely for passing
through the buffer zone en route to a destination outside the zone while wearing a lapel
pin advocating the election of a political candidate or a T-shirt exhorting a favorite
baseball team.
124. The existence and enforcement of the Act chills and deprives Plaintiffs
and third parties not before the Court of their rights to free speech. Plaintiffs and third
parties are suffering irreparable harm to their First Amendment rights.
THIRD CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Prior Restraint)
125. Paragraphs 1 through 104 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
126. Public streets and sidewalks are quintessential public forums for speech.
127. The government’s ability to restrict speech in public forums is very
limited.
128. The Act is a content- and viewpoint-based restriction of speech, both on
its face and as interpreted by the Attorney General.
129. The Act completely bans Plaintiffs and third parties from engaging in any
expressive activities within the zone.
130. The Act forecloses Plaintiffs and third parties from orally communicating
to persons within the zone from a normal conversational distance.
131. The Act forecloses Plaintiffs and third parties from standing within the
zone near the path of oncoming pedestrians and proffering their material.
132. The Act effectively forecloses Plaintiffs’ and third parties’ ability to orally
communicate with both willing and unwilling listeners located within the zone.
Deleted: 74
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133. The Act effectively forecloses Plaintiffs’ and third parties’ ability to
distribute literature to both willing and unwilling recipients located within the zone.
134. The Act severely burdens Plaintiffs’ and third parties’ ability to effectively
display signs.
135. The Act does not leave open ample alternative avenues of communication.
136. The Act burdens substantially more speech than is necessary to achieve a
substantial and legitimate government interest.
137. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ affirmative rights to be free from impermissible prior restraint in violation of
the First and Fourteenth Amendments to the United States Constitution.
138. The existence and enforcement of the Act chills and deprives Plaintiffs
and third parties of their rights to free speech. Plaintiffs and third parties are suffering
irreparable harm to their First Amendment rights.
FOURTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Free Association – Free Exercise -- Hybrid)
139. Paragraphs 1 through 104 of the Complaint are incorporated herein, same
as though pleaded in full.
140. Public streets and sidewalks are quintessential public forums for speech.
141. Peaceful expressive activities, including oral communications, literature
distribution, and sign display, are rights guaranteed by the Free Speech and Press Clauses
of the First and Fourteenth Amendments to the United States Constitution.
142. Peaceful use of public streets and sidewalks for the purpose of seeking
political, social, moral, or religious change is a right guaranteed by the Free Assembly
Clause of the First and Fourteenth Amendments to the United States Constitution.
Deleted: 74
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143. Peaceful grouping of two or more persons for the purpose of enhancing
communicative efforts, i.e., the right to associate, is guaranteed by First and Fourteenth
Amendments to the United States Constitution.
144. Peaceful public prayer, singing, and worship, and display of religious
articles are rights guaranteed by the Free Exercise Clause of the First and Fourteenth
Amendments to the United States Constitution.
145. Infringement of the right to free exercise of religion exercised in
combination of other fundamental constitutional rights subjects the Act to strict scrutiny
review.
146. The Act does not serve a compelling state interest nor is it the least
restrictive means of achieving the State’s asserted interest.
147. The Act is not a neutral and generally applicable law because, inter alia, it
applies only at locations that offer abortions and it does not apply equally to all speakers.
148. The existence and enforcement of the Act, on its face and as applied, chills
and deprives Plaintiffs of their rights to free speech, free press, free assembly, and free
exercise of religion. Plaintiffs are suffering irreparable harm to their First Amendment
rights.
FIFTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech –Viewpoint Discrimination)
149. Paragraphs 1 through 104 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
150. The Act is a content-based restriction on speech.
151. The Act is a viewpoint-based restriction on speech.
Deleted: 74
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152. The Act impermissibly creates speaker distinctions, preferring clinic
speakers to Plaintiffs on the public sidewalks.
153. The Act does not serve a compelling state interest.
154. The Act is not the least restrictive means of achieving the State’s asserted
interest.
155. The Attorney General’s purported interpretation is expressly content-
based, in that it criminalizes speech on the public sidewalk if it concerns abortion or
“partisan” issues.
156. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ affirmative rights to free speech secured by the First and Fourteenth
Amendments to the United States Constitution.
157. The existence and enforcement of the Act chills and deprives Plaintiffs
and third parties of their rights to free speech. Plaintiffs and third parties are suffering
irreparable harm to their First Amendment rights.
SIXTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Due Process - Vagueness)
158. Paragraphs 1 through 104 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
159. The Act does not give fair notice to citizens.
160. The Act does not provide minimal standards to guide law enforcement.
161. Whether a person is using a public sidewalk “solely” for the purpose of
reaching a destination other than a reproductive health care facility cannot be known by a
law enforcement officer.
Deleted: 74
Deleted: <#>Public streets and sidewalks are quintessential public forums for speech.¶<#>Public streets and sidewalks are held in the public trust for use by all law-abiding citizens. ¶<#>The Act excludes from its reach “persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility.”¶
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162. The phrase “partisan speech” in the Attorney General’s guidance letter is
vague and ambiguous, and can be read to criminalize the wearing a lapel pin advocating
the election of a political candidate or a T-shirt exhorting a favorite baseball team.
163. The Act is impermissibly vague because it fails to establish standards for
the police that are sufficient to guard against the arbitrary and discriminatory suppression
of First Amendment rights.
164. The Act is impermissibly vague because it fails to establish standards for
the police that are sufficient to guard against arbitrary deprivation of liberty interests.
165. The Attorney General’s purported interpretation is impermissibly vague,
in that it requires speakers and law enforcement officers to guess at what speech on a
public sidewalk will be deemed “partisan” and therefore criminal.
166. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ and third parties’ affirmative rights in violation of the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.
SEVENTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Due Process – Liberty Interest)
167. Paragraphs 1 through 104 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
168. Public streets and sidewalks are held in the public trust for use by all law-
abiding citizens.
169. The right of an individual to remain in the public place of his choice is a
liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
Deleted: <#>Because a police officer cannot know with certainty whether a person is using a public sidewalk or street “solely” for the purpose of reaching a destination other than a reproductive health care facility, the Act necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.¶Because a police officer cannot know with certainty whether a person is using a public sidewalk or street “solely” for the purpose of reaching a destination other than a reproductive health care facility, the Act authorizes and encourages arbitrary and discriminatory enforcement.
Deleted: 74
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170. The freedom to loiter for innocent purposes is a liberty interest protected
by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
171. The Act denies Plaintiffs and third persons their liberty interests in the use
of public streets and sidewalks for innocent purposes and their rights to intrastate travel in
violation of the Fourteenth Amendment to the United States Constitution.
172. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ and third parties’ liberty interests in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
EIGHTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech/Equal Protection)
173. Paragraphs 1 through 104 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
174. Public streets and sidewalks are quintessential public forums for the
exercise of constitutionally protected expressive activities and certain liberty interests.
175. The right of an individual to remain in the public place of his choice is a
liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
176. The Act prohibits most citizens from accessing the zone for all purposes
other than to reach a destination other than the reproductive health care facility located
within it.
177. The Act, by its express terms, exempts from its reach certain defined
classes of persons thereby permitting them to freely engage in all manner of expressive
activity and liberty interests pertaining to the public ways.
Deleted: 74
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178. With respect to the exercise of expressive activity and liberty interests,
Plaintiffs and third parties are similarly-situated to exempted classifications yet treated in
a dissimilar manner.
179. The Attorney General’s purported interpretation of the Act permits clinic
speakers to tell incoming clients “we’ll help you inside the clinic” but prohibits Plaintiffs
from saying “we’ll help you down the street” or otherwise making competing offers of
assistance inside the zone.
180. The Act, on its face and as applied, creates impermissible speaker
distinctions, allowing certain speakers to communicate on public sidewalks but
subjecting others to imprisonment.
181. The Act impinges fundamental rights and liberty interests and therefore is
subject to strict scrutiny review.
182. The Commonwealth cannot demonstrate a compelling interest for the
differing classifications nor is the Act the least restrictive means of achieving its asserted
interest.
183. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ and third parties’ rights to equal protection of the law as guaranteed by the
Fourteenth Amendment to the United States Constitution
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that the Court:
a. Assume jurisdiction over this action;
b. Declare that Mass. Gen. L. chapter 266: Section 120E1/2(b) is
unconstitutional on its face;
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c. Declare that Mass. Gen. L. chapter 266: Section 120E1/2(b) is
unconstitutional as applied to Plaintiffs’ expressive activities at each of the following:
Allston-Brighton Planned Parenthood, Women’s Health Services, Springfield Planned
Parenthood and Worcester Planned Parenthood;
d. Enter a preliminary and permanent injunction enjoining Defendants from
enforcing Mass. Gen. L. chapter 266: Section 120E1/2(b);
e. Award Plaintiffs their costs of litigation, including reasonable attorneys’
fees and expenses, pursuant to 42 U.S.C. § 1988; and
f. Grant such other and further relief as the Court deems necessary and proper.
FOR THE PLAINTIFFS
Respectfully submitted,
____________________ Mark L. Rienzi, Esq. CATHOLIC UNIVERSITY OF AMERICA COLUMBUS SCHOOL OF LAW 3600 John McCormack Road, NE Washington, D.C. 20064 (202) 319-5140 [email protected]
Michael J. DePrimo, CT Bar # 402211 Admitted pro hac vice Attorney at Law
778 Choate Avenue Hamden, Connecticut 06518 Tel: (203) 281-1496 Fax: (203) 281-1496 Email: [email protected] Philip D. Moran, MA Bar # 353920 PHILIP D. MORAN P.C. 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085
Deleted: and
Deleted: Service
Deleted: injunctions
Deleted: Defendant
Deleted: /s/ Philip
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Deleted: Moran
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Case 1:08-cv-10066-JLT Document 94-2 Filed 09/17/10 Page 28 of 29
Admitted pro hac vice ALLIANCE DEFENSE FUND 15100 N. 90th Street Scottsdale, Arizona 85260 Tel: (480) 444-0020 Fax: (480) 444-0028 Email: [email protected]
Kevin H. Theriot, KS Bar # 21565
Admitted pro hac vice ALLIANCE DEFENSE FUND 15192 Rosewood Leawood, Kansas 66224 Tel: (913) 685-8000 Fax: (913) 685-8001 Email: [email protected]
Deleted:
Deleted: ¶/s/ Michael J. DePrimo¶Michael J. DePrimo, CT Bar # 402211¶Pending admission pro hac vice¶Attorney at Law¶
Deleted: Timothy D. Chandler, CA Bar # 234325¶Pending admission pro hac vice¶Alliance Defense Fund¶101 Parkshore Drive, Suite 100¶Folsom, California 95630¶Tel: (916) 932-2850¶Fax: (916) 932-2851¶Email: [email protected]¶¶
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Case 1:08-cv-10066-JLT Document 94-2 Filed 09/17/10 Page 29 of 29
000083
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION ELEANOR McCULLEN, JEAN ) BLACKBURN ZARRELLA, ) GREGORY A. SMITH, CARMEL ) FARRELL, ERIC CADIN, ) CYRIL SHEA, DONALD GOLDEN, ) NANCY CLARK, MARK BASHOUR ) And NOREEN BEEBE, ) Civil Action 1:08-CV-10066-JLT ) Plaintiffs, ) ) v. ) ) MARTHA COAKLEY, Attorney ) General for the COMMONWEALTH OF ) MASSACHUSETTS, DANIEL F. ) CONLEY, District Attorney for Suffolk ) County, MICHAEL W. MORRISSEY, ) District Attorney for Norfolk County, ) MARK G. MASTROIANNI, District ) Attorney for Hampden County, and ) JOSEPH D. EARLY, District Attorney ) for Worcester County, ) ) Defendants ) ________________________________________________________________________
FIRST AMENDED COMPLAINT FOR CIVIL RIGHTS VIOLATIONS, DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF
LEAVE TO AMEND GRANTED DECEMBER 29, 2010 ________________________________________________________________________
I. PRELIMINARY STATEMENT
1. This is a civil rights action brought pursuant to 42 U.S.C. § 1983
challenging the constitutionality, facially and as applied, of Mass. Gen. L. chapter 266:
Section 120E1/2(b), as amended, which creates a fixed buffer with a radius of 35-feet
(hereafter, “zone”) around the entrances, exits, and driveways of reproductive health care
facilities that perform abortions (hereafter, “the Act”).
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2. The Act is an unconstitutional regulation designed and intended to ban
virtually all citizens from engaging in fundamental rights and liberties on significant
portions of public sidewalks and streets adjacent to non-hospital abortion clinics. It
essentially and unlawfully privatizes public ways held in the public trust for use by all
citizens.
3. The Act chills and deprives Plaintiffs and third parties from engaging in
expressive activities guaranteed by the First and Fourteenth Amendments to the United
States Constitution. Preliminary and permanent injunctive relief is warranted.
II. JURISDICTION AND VENUE
4. This Court has jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C.
§§ 1331 and 1343, and 42 U.S.C. § 1983. The Court has jurisdiction over the request for
declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.
5. Venue is proper in the District of Massachusetts, Boston Division,
pursuant to 28 U.S.C. § 1391(b)(1).
III. IDENTIFICATION OF PLAINTIFFS
6. Plaintiff Eleanor McCullen is a citizen of the United States and a resident
of Chestnut Hill, Massachusetts. She is a 74 year-old mother and grandmother. She has
never been arrested.
7. Plaintiff Jean Blackburn Zarrella is a citizen of the United States and a
resident of Lynnfield, Massachusetts. She is an 84 year-old mother and grandmother.
She has never been arrested.
8. Plaintiff Gregory A. Smith is a citizen of the United States and a resident
of Stoughton, Massachusetts. He is a 77 year-old father and grandfather.
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9. Plaintiff Carmel Farrell is a citizen of the United States and a resident of
Plymouth, Massachusetts. She is a 64 year-old mother and grandmother. She has never
been arrested.
10. Plaintiff Eric Cadin is a citizen of the United States and a resident of
Weymouth, Massachusetts. He is a 30 year-old single adult male who is studying pre-
med at Harvard University. He has never been arrested.
11. Plaintiff Cyril Shea, M.D. is a citizen of the United States and a resident of
West Springfield, Massachusetts. He is 83 years old and a retired orthopedic surgeon.
He has never been arrested.
12. Plaintiff Donald Golden is a citizen of the United States and a resident of
Longmeadow, Massachusetts. He is 60 years old. He has never been arrested.
13. Plaintiff Nancy Clark is a citizen of the United States and a resident of
Worcester, Massachusetts. She is 48 years old and the mother of nine (9) children. She
has never been arrested.
14. Plaintiff Mark Bashour is a citizen of the United States and a resident of
Northboro, Massachusetts. He is 50 years old.
15. Plaintiff Noreen Beebe is a citizen of the United States and a resident of
Florence, Massachusetts. She a 62 year old mother and grandmother. She has never
been arrested.
IV. IDENTIFICATION OF DEFENDANTS
16. Defendant Martha Coakley is Attorney General for the Commonwealth of
Massachusetts and, in that capacity, is the chief law enforcement officer for the
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Commonwealth. She is charged with overseeing prosecutions for violations of the Act.
She is sued in her official capacity only.
17. Defendant Daniel F. Conley is district attorney for Suffolk County,
Massachusetts and, in that capacity, is charged with enforcing state law in Boston,
Massachusetts. He is sued in his official capacity only.
18. Defendant Michael W. Morrissey is district attorney for Norfolk County,
Massachusetts and, in that capacity, is charged with enforcing state law in Brookline,
Massachusetts. He is sued in his official capacity only.
19. Defendant Mark G. Mastroianni is district attorney for Hampden County,
Massachusetts and, in that capacity, is charged with enforcing state law in Springfield,
Massachusetts. He is sued in his official capacity only.
20. Defendant Joseph D. Early Jr. is district attorney for Worcester County,
Massachusetts and, in that capacity, is charged with enforcing state law in Worcester
Massachusetts. He is sued in his official capacity only.
V. ALLEGATIONS OF FACT
21. Subsection (b) of the Act states,
No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of thirty-five feet of any portion of an entrance to, exit from, or driveway of a reproductive health care facility, or within the area within a rectangle created by extending the outside boundaries of any entrance to, exit from, or driveway of, a reproductive health care facility in straight lines to the point where such lines intersect the sideline of the street in front of such entrance, exit or driveway. This subsection shall not apply to the following:
persons entering or leaving such facility;
employees or agents of such facility acting within the scope of their employment;
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law enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents acting within the scope of their employment;
persons using the public sidewalk or street right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such facility.
22. Subsection (c) of the Act provides that subsection (b) shall take effect
during a facility’s business hours and if the area contained within the radius and rectangle
described in said subsection (b) is clearly marked and posted.
23. Subsection (d) of the Act makes criminal a violation of subsection (b) of
same, providing that,
[w]hoever knowingly violates this section shall be punished, for the first offense, by a fine of not more than $500 or not more than three months in a jail or house of correction, or by both such fine and imprisonment, and for each subsequent offense, by a fine of not less than $500 and not more than $5,000 or not more than two and one-half years in a jail or house of correction, or both such fine and imprisonment.
24. Subsection (e) of the Act makes it unlawful to obstruct, detain, hinder,
impede or block another person’s entry to or exit from a reproductive health care facility.
Plaintiffs do not challenge this subsection.
25. The Act was adopted on a purported emergency basis and became
effective on November 13, 2007, the date the Act was signed by the Governor.
26. The stated underlying purpose for the Act, as set forth in the preamble to
the bill introduced and numbered Senate Bill 1353, is to comply with the State’s
fundamental obligation to preserve public safety by creating clearly defined boundaries to
improve the ability of safety officials to protect the public -- specifically pedestrians
travelling peacefully on Massachusetts streets and sidewalks.
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27. By its plain terms, the Act applies only to reproductive health care
facilities that perform abortions. Hospitals in which abortions are performed are excluded
from the Act.
28. A sign is posted and line drawn in yellow paint in a 35-foot radius around
the front entrance to Allston-Brighton Planned Parenthood, 1055 Commonwealth
Avenue, Boston, which is located at the corner of Commonwealth Avenue and Alcorn
Street (hereafter, “Allston-Brighton Planned Parenthood”). The marked zone covers all
but approximately 12 inches of the public sidewalk directly in front of the facility and
adjacent to Commonwealth Avenue. The zone extends approximately 6 feet into Alcorn
Street parallel to Commonwealth Avenue and approximately 12 feet around the corner
down Alcorn Street. In addition, there is a sign posted and a 35-foot zone marked around
the rear entrance to the facility. The rear zone encompasses nearly the entire street
(Gardner Street) adjacent to the rear entrance.
29. Signs are posted and two zones marked - each with a 35-foot radius -
around two passageways alongside the building housing Women’s Health Services, 111
Harvard Street, Brookline (hereafter, “Women’s Health Services”). One passageway
appears to be a driveway leading into the parking lot of 111 Harvard Street, and the other
a private street called Harvard Court that leads to buildings behind 111 Harvard Street.
30. These two zones encompass nearly 182.5 linear feet of the public sidewalk
in front of the building housing Women’s Health Services. The zones extend to the
double-yellow line in the middle of Harvard Street, a busy main thoroughfare.
31. Signs are posted and five zones marked - each with a 35-foot radius –
around the driveways of a three-building medical office complex that houses Planned
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Parenthood, 3550 Main Street, Springfield (hereafter, “Springfield Planned Parenthood”).
The buffer zones occupy approximately 500 linear feet of the public sidewalk along Main
Street and Wason Avenue. Each of the zones extends to the double-yellow line in the
middle of Main Street or Wason Avenue. The entrances to the building housing
Springfield Planned Parenthood are set back 335 feet from Main Street and 220 feet from
Wason Avenue.
32. A bus stop is located near one of the Main Street buffer zones. Sometimes
people waiting for the bus sit on the grass under a tree located within the buffer zone.
33. Signs are posted and two zones marked - each with a 35-foot radius –
around the purported driveways of the building that houses Planned Parenthood, 470
Pleasant Street, Worcester (hereafter, “Worcester Planned Parenthood”). One zone is
located on Pleasant Street and the other on Dewey Street. The buffer zones occupy
approximately 177.3 linear feet of the public sidewalk along Pleasant and Dewey Streets.
Each zone occupies a large portion of the public street in addition to public sidewalks.
The Pleasant Street zone is marked adjacent to an area that purports to be a driveway
entrance but is not used for that purpose. The doorway entrance to Planned Parenthood at
this location is 63.3 feet from the nearest public street curb.
34. Plaintiffs are pro-life advocates motivated to oppose the practice of
abortion because of their religious and/or moral beliefs that induced abortion is the
deliberate destruction of innocent human life. Plaintiffs regularly travel to the public
ways adjacent to reproductive health care facilities in Massachusetts to peacefully
provide information about abortion alternatives and to offer assistance and support to
persons entering and/or exiting the facility.
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35. As part of their ministry and/or peaceful pro-life advocacy, Plaintiffs offer
secular and religious literature to persons approaching reproductive health care facilities
(hereinafter “clinic clients”). Plaintiffs do this in an effort to educate clinic clients and
others that alternatives to abortion are available, including adoption and other means of
support, including financial and/or emotional support. In addition to distributing
literature, one or more Plaintiffs engage in other peaceful expressive activities on the
public ways adjacent to reproductive health care facilities including oral advocacy,
counseling, and prayer.
36. Plaintiffs desire to orally communicate with clinic clients and passersby
from a distance in which they can speak in a normal conversational tone and make eye
contact. Plaintiffs wish to avoid raising their voices or speaking from long distances.
37. Because in most instances they cannot identify clinic clients until they
actually approach the reproductive health care facility, Plaintiffs and other pro-life
advocates must station themselves on the public ways near the path of pedestrians and in
close proximity to facility entrances and driveways in order to effectively communicate
their message. On many occasions, clinic clients and/or their companions willingly
receive such oral communications
38. In order to effectively distribute literature to clinic clients and other
persons entering or exiting reproductive health care facilities, Plaintiffs and other pro-life
advocates must stand on public sidewalks and streets near the path of pedestrians so they
can proffer literature near the hands of passersby. On many occasions, clinic clients
and/or their companions willingly receive such literature.
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39. Plaintiffs and other pro-life advocates have encountered opposition from
pro-choice advocates who surround, cluster, yell, make noise, mumble, and/or talk loudly
to clinic clients for the purpose of disrupting or drowning out pro-life speech and thwart
Plaintiffs’ efforts to distribute literature. When this happens, pro-life advocates cannot be
heard or distribute literature unless they are in close proximity to their intended audience.
40. After the enactment of the Act, facility employees and/or agents
sometimes stand idly on the public sidewalks and streets inside the zone including its
outermost edge. Sometimes they smoke, drink coffee, or make phone calls and at other
times they engage in conversation with each other. They have done this even when clinic
clients were not present.
41. Sometimes persons accompanying women seeking abortions come out of
the facility and linger within the area encompassed by the zone to smoke cigarettes, make
phone calls, or stand around for no apparent purpose.
42. Immediately after significant snow accumulations the streets adjacent to
the above-referenced clinics are plowed. In such circumstances, the existence of snow
piles can make it impossible or very difficult for Plaintiffs to (a) see the sidewalk
markings delineating the zones, (b) position themselves at the outside of the zones, (c) get
around the zone to speak with listeners on the other side of the zones, and/or (d) stand
near the path of pedestrians.
43. Plaintiff McCullen has been offering information about alternatives to
abortion and providing offers of support to incoming clients and others at Allston-
Brighton Planned Parenthood, at which abortions are performed, for the past 7 years. On
numerous occasions women seeking abortion changed their minds as a result of
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McCullen’s sidewalk counseling. McCullen’s experience has been that her counseling is
effective when offered to the recipient in a normal conversational tone and in a friendly
and gentle manner. She always tries to stand near the path of pedestrians.
44. Since the Act took effect there have been several occasions when clinic
clients entered the marked zone at Allston-Brighton Planned Parenthood from the side
opposite where McCullen was standing. McCullen was unable to navigate around the
zone before the clients entered the facility and thus was unable to effectively
communicate her message.
45. Plaintiff Zarrella has been has been offering information about alternatives
to abortion and providing offers of support to incoming clients for the past 17 years. On
numerous occasions women seeking abortion changed their minds as a result of Zarrella’s
sidewalk counseling. Zarrella’s experience has been that her counseling is effective
when offered to the recipient in a normal conversational tone and in a friendly and caring
manner. She also has found that eye contact is essential to effective communication so
she tries to stand near the path of pedestrians. Since the Act took effect, the buffer zone
has impeded her ability to communicate in this manner.
46. Plaintiff Smith has peacefully prayed the Rosary at Allston-Brighton
Planned Parenthood for the past 17 years. When doing so he usually prays with others to
make his message more effective. Prior to the Act’s enactment Smith prayed the Rosary
inside the zone. Since the Act’s adoption he has refrained from doing so. Smith desires
to pray inside the zone but fears arrest or citation if he does so. In addition to prayer
Smith displays a Crucifix.
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47. Plaintiff Cadin has been offering information and support at the Allston-
Brighton Planned Parenthood for approximately 4-½ years. He offers both men and
women alternatives to abortion through oral communications and by distributing
literature. Prior to enactment of the Act, Cadin would often stand next to men or women
who exited the facility to smoke cigarettes. This area is now located within the zone.
Cadin’s experience has been that his offers of help are effective when made in close
proximity to the recipient, with a smile, and in a calm and gentle demeanor which tends
to put both men and women at ease.
48. On several occasions since the Act took effect, Plaintiffs McCullen and
Cadin were nearly struck by vehicles turning onto Alcorn Street from Commonwealth
Avenue as they attempted to communicate with clinic clients without transgressing the
marked zone.
49. Plaintiff Farrell engages in expressive activities at Women’s Health
Service, 111 Harvard Street, Brookline. The two marked zones at this location make it
impossible for Farrell to stand near the path of pedestrians or vehicles entering the
driveways, and entirely forecloses her ability to leaflet to unwilling and even willing
recipients. The marked zones also prevent her from speaking to clinic clients in a normal
conversational tone.
50. Plaintiffs Shea, Golden, and Beebe engage in peaceful expressive
activities at Springfield Planned Parenthood. The five marked zones at this location
make it impossible for them to stand near the path of pedestrians or vehicles entering the
driveways, and entirely forecloses their ability to leaflet to unwilling and even willing
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recipients. The marked zones also prevent them from speaking to clinic clients in a
normal conversational tone or from a normal conversational distance.
51. Since the Act took effect, cars on Wason Ave. sometimes swerve to avoid
the buffer zone line, which extends into and is painted on the street, endangering public
safety.
52. Plaintiffs Clark and Bashour engage in peaceful expressive activities at
Worcester Planned Parenthood. The two marked zones at this location make it
impossible for them to stand near the path of pedestrians or vehicles entering the
driveways, and entirely forecloses their ability to leaflet to unwilling and even willing
recipients. The marked zones also prevent them from speaking to clinic clients in a
normal conversational tone or from a normal conversational distance.
53. Public sidewalks and streets in Massachusetts are used by third parties not
before the Court (hereafter, “third parties”) for non-abortion related peaceful speech or
assembly activities such as labor picketing, anti-war and environmental demonstrations,
labor organizing, hawking newspapers or magazines, soliciting charitable contributions,
circulating petitions, panhandling, and spur-of-the-moment conversations with friends or
acquaintances. They also are used for such innocent non-speech activities as simple
loitering, waiting for public or private transportation, smoking cigarettes, or simply
strolling about without an intended destination.
54. Massachusetts citizens have been using the public streets and sidewalks to
debate political, social, and religious issues since well before the Founding of the United
States.
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55. The Act prevents Plaintiffs and third parties from approaching both
willing and unwilling listeners within the zone.
56. The Act severely burdens Plaintiffs’ and third parties’ ability to win the
attention of both willing and unwilling listeners and, consequently, from reaching the
minds of their intended audience. Some people may have difficulty reading signs or
hearing clearly from 35 feet away, or even lesser distances.
57. The Act prevents Plaintiffs and third parties from engaging in oral
communications in a normal conversational tone with persons located in certain areas
within or without the zone.
58. The Act severely burdens Plaintiffs’ and third parties’ ability to distribute
literature to willing recipients located in certain areas within or without the zone.
59. The Act forecloses altogether Plaintiffs’ and third parties’ ability to
distribute literature to unwilling recipients located in certain areas within the zone.
60. The Act prevents Plaintiffs and third persons from standing within the
zone near the path of oncoming pedestrians when proffering their material, thereby
making it difficult for pedestrians to accept such material.
61. The Act, as applied at the challenged locations, does not allow speakers
adequate alternative channels of communication
62. The Act prevents Plaintiffs and third parties from approaching, in an
inoffensive way, persons within the zone for the purpose of offering information with a
view to influencing actions that may have an imminent and irreversible consequence.
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63. The Act prevents both willing and unwilling listeners from receiving
certain oral communications, including pro-life communications, in a normal
conversational tone or from a normal conversational distance.
64. The Act prevents willing recipients from easily receiving certain types of
literature, including pro-life literature, if they are in close proximity to clinic entrances,
exits, and driveways.
65. The Act prevents Plaintiffs and third parties from utilizing large portions
of public sidewalks and streets adjacent to reproductive health care facilities for any
purpose other than reaching a destination other than such facility.
66. The Act by its terms exempts certain classes of individuals from its reach,
including health care facility employees and agents, thereby granting them free,
unrestricted, and unhindered access to the zone regardless of purpose.
67. The Act by its terms exempts certain classes of individuals from its reach,
including health care facility employees and agents, thereby permitting them to freely
engage in all manner of expressive activity inside the zone.
68. The Act creates public safety hazards by forcing Plaintiffs and third
parties to stand or walk in portions of the public street occupied by vehicular traffic.
69. The Act creates public safety hazards by decreasing the flow of traffic and
creating congestion on those portions of public streets occupied by vehicular traffic.
70. In each of the challenged locations, the size and location of the zone(s)
place a substantial burden on Plaintiffs’ ability to orally communicate, leaflet, and display
signs toward clinic clients and their companions.
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71. The size and location of the zone(s) render ineffective Plaintiffs’ attempts
to orally communicate, leaflet, and display signs toward their intended audience.
72. The size and location of the zone(s) virtually eliminate Plaintiffs’ ability to
leaflet.
73. The legislative record is insufficient to support the draconian measures
contained in the Act that severely infringe First Amendment rights and constitutionally
protected liberty interests.
74. Since the Act was adopted, Plaintiffs desired to engage in distribution of
literature, oral advocacy, and/or prayer on public streets and sidewalks located within a
35-foot radius of entrances, exits, and driveways of reproductive health care facilities but
refrained from doing so out of fear of arrest and prosecution for violating the Act.
75. Each of the Plaintiffs has a present and future desire and intention to
engage in distribution of literature, oral advocacy, and/or prayer on public streets and
sidewalks located within a 35-foot radius of entrances, exits, and driveways of
reproductive health care facilities but will refrain from doing so out of fear they will be
arrested by police for violating the Act.
76. Plaintiffs have no plain, adequate, or complete remedy at law to redress
the foregoing violations of their constitutional rights and liberty interests, and this suit for
injunction and declaratory judgment is their only means of securing complete and
adequate relief. No other remedies would offer Plaintiffs substantial and complete
protection from Defendant’s unlawful laws, statutes, policies, and practices.
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VI. ALLEGATIONS OF LAW
77. The Act alleged herein is enforced or enforceable by Defendants under the
color and pretense of the laws, statutes, and policies of the Commonwealth of
Massachusetts and/or its political subdivisions.
78. The loss of First Amendment freedoms for even minimal periods of time
unquestionably constitutes irreparable injury.
79. The public ways affected by the Act are quintessential public forums for
expressive activities guaranteed by the First and Fourteenth Amendments to the United
States Constitution.
80. The right to engage in peaceful expressive activity, assembly, and
association in quintessential public forums is guaranteed by the Free Speech and
Assembly Clauses of the First and Fourteenth Amendments to the United States
Constitution.
81. The right to peacefully distribute literature in quintessential public forums
is guaranteed by the Free Speech and Free Press Clauses of the First and Fourteenth
Amendments to the United States Constitution.
82. The right to engage in peaceful prayer, worship, and religious song in
quintessential public forums is guaranteed by the Free Speech and Free Exercise Clauses
of the First and Fourteenth Amendments to the United States Constitution.
83. The fact that certain messages may be offensive to some of their recipients
does not deprive them of constitutional protection.
84. The right to receive information is guaranteed by the First and Fourteenth
Amendments to the United States Constitution.
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85. The Act infringes the rights of willing recipients to receive literature and
oral communications and therefore violates the First and Fourteenth Amendments to the
United States Constitution.
86. The right to travel and remain in the public place of one’s choice is an
aspect of personal liberty guaranteed by the Fourteenth Amendment to the United States
Constitution.
87. The right to loiter for innocent purposes on public ways is an aspect of
personal liberty guaranteed by the Fourteenth Amendment to the United States
Constitution.
88. The Act chills and deters fundamental constitutional rights of Plaintiffs
and third parties.
FIRST CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Time, Place, Manner)
(Asserted by ALL PLAINTIFFS on an as-applied basis; facial claim retained by Plaintiffs McCullen, Zarrella, Smith, Farrell, and Cadin for purposes of appeal)
89. Paragraphs 1 through 88 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
90. Public streets and sidewalks are quintessential public forums for speech.
91. The government’s ability to restrict speech in public forums is very
limited.
92. The Act burdens substantially more speech than necessary to achieve a
substantial and legitimate government interest.
93. The Act is not a valid time, place, and manner regulation.
94. The Act is not narrowly tailored
95. The Act does not serve a significant governmental interest.
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96. The Act does not leave open ample alternative channels of
communication.
97. The audience intended to be reached by peaceful oral advocacy and the
distribution of literature cannot be reached nearly as well by non-prohibited means.
98. The Act, as applied, has almost completely foreclosed a unique and
important means of communication.
99. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ affirmative rights to free speech secured by the First and Fourteenth
Amendments to the United States Constitution.
100. The existence and enforcement of the Act chills and deprives Plaintiffs of
their rights to free speech. Plaintiffs are suffering irreparable harm to their First
Amendment rights.
SECOND CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Substantial Overbreadth)
(Retained by Plaintiffs McCullen, Zarrella, Smith, Farrell, and Cadin for purposes of appeal)
101. Paragraphs 1 through 88 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
102. Public streets and sidewalks are quintessential public forums for speech.
103. The very existence of the Act may cause others not before the Court to
refrain from constitutionally protected speech or expression.
104. The Act is an overly-broad restriction on speech because it sweeps within
its ambit a substantial amount of constitutionally protected speech.
105. The Act burdens substantially more speech than is necessary to achieve a
substantial and legitimate government interest.
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106. The Act on its face is an unconstitutional abridgement of rights to free
speech secured by the First and Fourteenth Amendments to the United States
Constitution.
107. The existence and enforcement of the Act chills and deprives Plaintiffs
and third parties not before the Court of their rights to free speech. Plaintiffs and third
parties are suffering irreparable harm to their First Amendment rights.
THIRD CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Prior Restraint)
(Retained by Plaintiffs McCullen, Zarrella, Smith, Farrell, and Cadin for purposes of appeal)
108. Paragraphs 1 through 88 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
109. Public streets and sidewalks are quintessential public forums for speech.
110. The government’s ability to restrict speech in public forums is very
limited.
111. The Act completely bans Plaintiffs and third parties from engaging in any
expressive activities within the zone.
112. The Act forecloses Plaintiffs and third parties from orally communicating
to persons within the zone from a normal conversational distance.
113. The Act forecloses Plaintiffs and third parties from standing within the
zone near the path of oncoming pedestrians and proffering their material.
114. The Act effectively forecloses Plaintiffs’ and third parties’ ability to orally
communicate with both willing and unwilling listeners located within the zone.
115. The Act effectively forecloses Plaintiffs’ and third parties’ ability to
distribute literature to both willing and unwilling recipients located within the zone.
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116. The Act severely burdens Plaintiffs’ and third parties’ ability to effectively
display signs.
117. The Act does not leave open ample alternative avenues of communication.
118. The Act burdens substantially more speech than is necessary to achieve a
substantial and legitimate government interest.
119. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ affirmative rights to be free from impermissible prior restraint in violation of
the First and Fourteenth Amendments to the United States Constitution.
120. The existence and enforcement of the Act chills and deprives Plaintiffs
and third parties of their rights to free speech. Plaintiffs and third parties are suffering
irreparable harm to their First Amendment rights.
FOURTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech – Free Association – Free Exercise Hybrid)
(Retained by Plaintiffs McCullen, Zarrella, Smith, Farrell, and Cadin for purposes of appeal)
121. Paragraphs 1 through 88 of the Complaint are incorporated herein, same as
though pleaded in full.
122. Public streets and sidewalks are quintessential public forums for speech.
123. Peaceful expressive activities, including oral communications, literature
distribution, and sign display, are rights guaranteed by the Free Speech and Press Clauses
of the First and Fourteenth Amendments to the United States Constitution.
124. Peaceful use of public streets and sidewalks for the purpose of seeking
political, social, moral, or religious change is a right guaranteed by the Free Assembly
Clause of the First and Fourteenth Amendments to the United States Constitution.
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125. Peaceful grouping of two or more persons for the purpose of enhancing
communicative efforts, i.e., the right to associate, is guaranteed by First and Fourteenth
Amendments to the United States Constitution.
126. Peaceful public prayer, singing, and worship, and display of religious
articles are rights guaranteed by the Free Exercise Clause of the First and Fourteenth
Amendments to the United States Constitution.
127. Infringement of the right to free exercise of religion exercised in
combination of other fundamental constitutional rights subjects the Act to strict scrutiny
review.
128. The Act does not serve a compelling state interest nor is it the least
restrictive means of achieving the State’s asserted interest.
129. The existence and enforcement of the Act chills and deprives Plaintiffs of
their rights to free speech, free press, free assembly, and free exercise of religion.
Plaintiffs are suffering irreparable harm to their First Amendment rights.
FIFTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Free Speech –Viewpoint Discrimination)
(Retained by Plaintiffs McCullen, Zarrella, Smith, Farrell, and Cadin for purposes of appeal)
130. Paragraphs 1 through 88 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
131. The Act is a content-based restriction on speech.
132. The Act does not serve a compelling state interest.
133. The Act is not the least restrictive means of achieving the State’s asserted
interest.
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134. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ affirmative rights to free speech secured by the First and Fourteenth
Amendments to the United States Constitution.
135. The existence and enforcement of the Act chills and deprives Plaintiffs
and third parties of their rights to free speech. Plaintiffs and third parties are suffering
irreparable harm to their First Amendment rights.
SIXTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Due Process - Vagueness)
(Retained by Plaintiffs McCullen, Zarrella, Smith, Farrell, and Cadin for purposes of appeal)
136. Paragraphs 1 through 88 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
137. Public streets and sidewalks are quintessential public forums for speech.
138. Public streets and sidewalks are held in the public trust for use by all law-
abiding citizens.
139. The Act excludes from its reach “persons using the public sidewalk or
street right-of-way adjacent to such facility solely for the purpose of reaching a
destination other than such facility.”
140. The Act does not give fair notice to citizens.
141. The Act does not provide minimal standards to guide law enforcement.
142. Whether a person is using a public sidewalk “solely” for the purpose of
reaching a destination other than a reproductive health care facility cannot be known by a
law enforcement officer.
143. Because a police officer cannot know with certainty whether a person is
using a public sidewalk or street “solely” for the purpose of reaching a destination other
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than a reproductive health care facility, the Act necessarily entrusts lawmaking to the
moment-to-moment judgment of the policeman on his beat.
144. Because a police officer cannot know with certainty whether a person is
using a public sidewalk or street “solely” for the purpose of reaching a destination other
than a reproductive health care facility, the Act authorizes and encourages arbitrary and
discriminatory enforcement.
145. The Act is impermissibly vague because it fails to establish standards for
the police that are sufficient to guard against the arbitrary and discriminatory suppression
of First Amendment rights.
146. The Act is impermissibly vague because it fails to establish standards for
the police that are sufficient to guard against arbitrary deprivation of liberty interests.
147. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ and third parties’ affirmative rights in violation of the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.
SEVENTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Due Process – Liberty Interest)
(Retained by Plaintiffs McCullen, Zarrella, Smith, Farrell, and Cadin for purposes of appeal)
148. Paragraphs 1 through 88 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
149. Public streets and sidewalks are held in the public trust for use by all law-
abiding citizens.
150. The right of an individual to remain in the public place of his choice is a
liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
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151. The freedom to loiter for innocent purposes is a liberty interest protected
by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.
152. The Act denies Plaintiffs and third persons their liberty interests in the use
of public streets and sidewalks for innocent purposes and their rights to intrastate travel in
violation of the Fourteenth Amendment to the United States Constitution.
153. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ and third parties’ liberty interests in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
EIGHTH CAUSE OF ACTION - 42 U.S.C. § 1983 (Equal Protection)
(Retained by Plaintiffs McCullen, Zarrella, Smith, Farrell, and Cadin for purposes of appeal)
154. Paragraphs 1 through 88 of the Complaint are incorporated herein by
reference, same as though pleaded in full.
155. Public streets and sidewalks are quintessential public forums for the
exercise of constitutionally protected expressive activities and certain liberty interests.
156. The right of an individual to remain in the public place of his choice is a
liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
157. The Act prohibits most citizens from accessing the zone for all purposes
other than to reach a destination other than the reproductive health care facility located
within it.
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158. The Act, by its express terms, exempts from its reach certain defined
classes of persons thereby permitting them to freely engage in all manner of expressive
activity and liberty interests pertaining to the public ways.
159. With respect to the exercise of expressive activity and liberty interests,
Plaintiffs and third parties are similarly-situated to exempted classifications yet treated in
a dissimilar manner.
160. The Act impinges fundamental rights and liberty interests and therefore is
subject to strict scrutiny review.
161. The Commonwealth cannot demonstrate a compelling interest for the
differing classifications nor is the Act the least restrictive means of achieving its asserted
interest.
162. The Act, on its face and as applied, is an unconstitutional abridgement of
Plaintiffs’ and third parties’ rights to equal protection of the law as guaranteed by the
Fourteenth Amendment to the United States Constitution
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that the Court:
a. Assume jurisdiction over this action;
b. Declare that Mass. Gen. L. chapter 266: Section 120E1/2(b) is
unconstitutional on its face; [retained by Plaintiffs McCullen, Zarrella, Smith, Farrell,
and Cadin for purposes of appeal]
c. Declare that Mass. Gen. L. chapter 266: Section 120E1/2(b) is
unconstitutional as applied to Plaintiffs’ expressive activities at the above-referenced
locations;
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d. Enter preliminary and permanent injunctions enjoining Defendant from
enforcing Mass. Gen. L. chapter 266: Section 120E1/2(b);
e. Award Plaintiffs their costs of litigation, including reasonable attorneys’
fees and expenses, pursuant to 42 U.S.C. § 1988; and
f. Grant such other and further relief as the Court deems necessary and proper.
FOR THE PLAINTIFFS
/s/ Mark L. Rieni____________________ Mark L. Rienzi, Esq. The Catholic University of America Columbus School of Law 3600 John McCormack Road, NE Washington, D.C. 20064 (202) 319-5140 [email protected]
/s/ Philip D. Moran Philip D. Moran, MA Bar # 353920 Philip D. Moran P.C. 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: [email protected] /s/ Michael J. DePrimo Michael J. DePrimo, CT Bar # 402211 Admitted pro hac vice Attorney at Law
778 Choate Avenue Hamden, CT 06518 Tel: (203) 281-1496 Fax: (203) 281-1496 Email: [email protected] Benjamin W. Bull, AZ Bar # 009940 Admitted pro hac vice Alliance Defense Fund 15100 N. 90th Street Scottsdale, Arizona 85260 Tel: (480) 444-0020
Case 1:08-cv-10066-JLT Document 112 Filed 02/25/11 Page 26 of 27
Kevin H. Theriot, KS Bar # 21565 Admitted pro hac vice Alliance Defense Fund 15192 Rosewood Leawood, Kansas 66224 Tel: (913) 685-8000 Fax: (913) 685-8001 Email: [email protected]
CERTIFICATE OF SERVICE
I hereby certify that this document was filed electronically through the Electronic
Case Filing (ECF) system and thus copies will be sent electronically to the registered
participants on the Notice of Electronic Filing.
/s/ Mark L. Rienzi Mark L. Rienzi
Case 1:08-cv-10066-JLT Document 112 Filed 02/25/11 Page 27 of 27
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA, GREGORY A. SMITH, CARMEL FARRELL, and ERIC CADIN Plaintiffs, v. MARTHA COAKLEY, in her capacity as Attorney General for the COMMONWEALTH OF MASSACHUSETTS, Defendant.
Civil Action No. 1:08-cv-10066-JLT
JOINT STIPULATION AS TO THE CONTENT OF THE TRIAL RECORD FOR THE BENCH TRIAL OF PLAINTIFFS’ FACIAL CHALLENGE
At plaintiffs’ request, the Court has bifurcated the case: plaintiffs’ facial challenge to the
constitutionality of Mass. G.L. c. 266, § 120E1/2, as revised effective November 13, 2007 (the
“Act”), will be tried in a bench trial on May 28, 2008, based on the record evidence described
below, and plaintiffs’ as-applied challenge will be reserved for later resolution. See Order dated
April 23, 2008.
The parties hereby stipulate to the contents of the trial record for purposes of the bench
trial of plaintiffs’ facial challenge, as follows and subject to the conditions set forth below:
1. The parties stipulate that the affidavits or declarations listed below, including all
exhibits thereto, and the other exhibits listed below shall constitute the trial record for the
purpose of the bench trial of plaintiffs’ claims that the Act is unconstitutional on its face, subject
to the conditions that: (a) this trial record shall be used solely to decide plaintiffs’ facial
challenge to the Act, unless in the future the parties agree that some or all of it may also be used
for other purposes, or a party offers some part of this trial record (by motion or otherwise) as
evidence for another purpose and that evidence is admitted by the court after the opposing party
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has had the opportunity to be heard on any objection; (b) the parties do not, at least at this time,
stipulate to the use of any portion of this trial record in connection with plaintiffs’ claims that the
Act is unconstitutional as applied to areas adjacent to the two reproductive health care facilities
referenced in plaintiffs’ complaint (the Planned Parenthood League of Massachusetts facility
located at 1055 Commonwealth Avenue, Boston, Massachusetts, and the Women’s Health
Services facility located at 822 Boylston Street, Brookline, Massachusetts); and (c) because these
affidavits or declarations were originally submitted in support of or opposition to plaintiffs’
motion for a preliminary injunction (which was denied without prejudice on April 23, 2008), and
therefore contain some information that is potentially relevant only to plaintiffs’ as-applied
challenge to the Act, the parties reserve and do not waive the right to argue that any portion of
this stipulated trial record should be given no weight for the purpose of deciding plaintiffs’ facial
challenge.
2. When the parties file the agreed-upon trial record, they will use the exhibit
numbering set forth below, and will label each agreed-upon exhibit with a cover sheet in the
form:
Exhibit X of the Trial Record for Plaintiffs’ Facial Challenge in
McCullen v. Coakley, No. 1:08-cv-10066-JLT
3. Copies of the following Massachusetts statutes, to be submitted by the
Defendants, shall constitute part of the agreed-upon trial record:
• Exhibit 1 – Mass. St. 2007, c. 155;
• Exhibit 2 – Mass. Gen. Laws c. 260, § 120E 1/2 (as revised November 13, 2007); and
• Exhibit 3 – Mass. St. 2000, c. 217;
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4. The following declarations and other evidentiary materials to be submitted by the
Plaintiffs, and the exhibits attached thereto, shall also constitute part of the agreed-upon trial
record:
• Exhibit 4 - Declaration of Eleanor McCullen (previously Exhibit 1 to plaintiffs’ motion for preliminary injunction)
• Exhibit 5 – Declaration of Jean Blackburn Zarella (previously Exhibit 2 to plaintiffs’ motion for preliminary injunction)
• Exhibit 6 – Declaration of Carmel Farrell (previously Exhibit 3 to plaintiffs’ motion for preliminary injunction)
• Exhibit 7 – Declaration of Eric Cadin (previously Exhibit 4 to plaintiffs’ motion for preliminary injunction)
• Exhibit 8 – Declaration of Gregory A. Smith (previously Exhibit 5 to plaintiffs’ motion for preliminary injunction)
• Exhibit 9 – Declaration of William Cotter (previously Exhibit 6 to plaintiffs’ motion for preliminary injunction)
• Exhibit 10 – Declaration of Esther Ripplinger (previously Exhibit 7 to plaintiffs’ motion for preliminary injunction)
• Exhibit 11 – Declaration of Sherri Lewellyn (previously Exhibit 8 to plaintiffs’ motion for preliminary injunction)
• Exhibit 12 – Declaration of Molly White (previously Exhibit 9 to plaintiffs’ motion for preliminary injunction)
• Exhibit 13 – Declaration of Marlinda Augelli (previously Exhibit 10 to plaintiffs’ motion for preliminary injunction)
• Exhibit 14 – Declaration of Magdalena Sam Castro (previously Exhibit 11 to plaintiffs’ motion for preliminary injunction)
• Exhibit 15 – Declaration of Susanna Brennan (previously Exhibit 12 to plaintiffs’ motion for preliminary injunction)
• Exhibit 16 – Transcript of Deposition of William B. Evans 5/22/02 (previously Exhibit 1 to plaintiffs’ preliminary injunction memorandum)
• Exhibit 17 – Letters to Legislature Concerning SB1353, dated May 2007 (previously Exhibit 3 to plaintiffs’ preliminary injunction memorandum)
• Exhibit 18 – Massachusetts Senate Journal for October 23, 2007 (previously Exhibit 4 to plaintiffs’ preliminary injunction memorandum)
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• Exhibit 19 – Massachusetts House of Representatives Journal for 10/25/07 (previously Exhibit 5 to plaintiffs’ preliminary injunction memorandum)
• Exhibit 20 – Senate Bill No. 1353 (previously Exhibit 6 to plaintiffs’ preliminary injunction memorandum)
5. The following affidavits to be submitted by the Defendant, and the exhibits
attached thereto, shall constitute the remainder of the agreed-upon trial record:
• Exhibit 21 – Affidavit of Michael T. Baniukiewicz (previously submitted with defendant’s preliminary injunction opposition)
• Exhibit 22 – Affidavit of [Captain] William B. Evans (previously submitted with defendant’s preliminary injunction opposition)
• Exhibit 23 – Affidavit of Eric W. Funk (previously submitted with defendant’s preliminary injunction opposition)
• Exhibit 24 – Affidavit of Adam T. Martignetti (previously submitted with defendant’s preliminary injunction opposition)
• Exhibit 25 – Affidavit of [Detective] William McDermott (previously submitted with defendant’s preliminary injunction opposition)
• Exhibit 26 – Affidavit of Vineeth Narayanan (previously submitted with defendant’s preliminary injunction opposition)
• Exhibit 27 – Affidavit of Detective Arthur O’Connell (previously submitted with defendant’s preliminary injunction opposition)
• Exhibit 28 – Affidavit of Nicholas P. Paras (previously submitted with defendant’s preliminary injunction opposition)
• Exhibit 29 – Affidavit of Richard A. Powell (previously submitted with defendant’s preliminary injunction opposition)
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For the Plaintiffs, /s/ Michael J. DePrimo . Michael J. DePrimo, CT Bar # 402211 Admitted pro hac vice Attorney at Law 778 Choate Avenue Hamden, Connecticut 06518 Tel: (203) 281-1496 Fax: (203) 281-1496 Email: [email protected] Philip D. Moran, MA Bar # 353920 Philip D. Moran P.C. 265 Essex Street, Suite 202 Salem, Massachusetts 01970 Tel: (978) 745-6085 Fax: (978) 741-2572 Email: [email protected] Benjamin W. Bull, AZ Bar # 009940 Admitted pro hac vice Alliance Defense Fund 15100 N. 90th Street Scottsdale, Arizona 85260 Tel: (480) 444-0020 Fax: (480) 444-0028 Email: [email protected] Kevin H. Theriot, KS Bar # 21565 Admitted pro hac vice Alliance Defense Fund 15192 Rosewood Leawood, Kansas 66224 Tel: (913) 685-8000 Fax: (913) 685-8001 Email: [email protected] Timothy D. Chandler, CA Bar # 234325 Admitted pro hac vice Alliance Defense Fund 101 Parkshore Drive, Suite 100 Folsom, California 95630 Tel: (916) 932-2850 Fax: (916) 932-2851 Email: [email protected]
MARTHA COAKLEY ATTORNEY GENERAL OF MASSACHUSETTS /s/ Kenneth W. Salinger . Kenneth W. Salinger (BBO # 556967) Assistant Attorney General Administrative Law Division One Ashburton Place Boston, MA 02108 (617) 727-2200 ext. 2075 Anna-Marie Tabor (BBO # 662364) Assistant Attorney General Civil Rights Division One Ashburton Place Boston, MA 02108 (617) 727-2200 ext. 2914
May 6, 2008
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Certificate of Service I hereby certify that this document was filed through the Electronic Case Filing (ECF) system and thus copies will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF); paper copies will be sent to those indicated on the NEF as non registered participants on or before May 7, 2008.
/s/ Kenneth W. Salinger .
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA, GREGORY A. SMITH, CARMEL FARRELL, and ERIC CADIN Plaintiffs, v. MARTHA COAKLEY, in her capacity as Attorney General for the COMMONWEALTH OF MASSACHUSETTS, Defendant.
Civil Action No. 1:08-cv-10066-JLT
AFFIDAVIT OF ADAM T. MARTIGNETTI
I, Adam T. Martignetti, do depose and state:
1. The statements set forth in this Affidavit are based on my own personal
knowledge and observations, and to the best of my knowledge are all true and accurate.
2. I am the Staff Director for the Joint Committee on Public Safety and Homeland
Security of the Massachusetts Legislature (the “Committee”). In that capacity, I report to
Representative Michael A. Costello, House Chair of the Committee. Among my duties is
keeping and maintaining records of testimony received by the Committee concerning bills
pending before the Committee. I also am responsible for tracking Committee bills as they
progress through the legislative process.
3. Senate Bill Number 1353, “An Act Relative to Public Safety” (“Senate No.
1353”), was referred to the Committee on January 10, 2007. A true and accurate copy of the bill
as it was referred to the Committee is attached hereto as Exhibit A.
4. On May 16, 2007, the Committee held a public hearing and received written and
oral testimony on Senate No. 1353.
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5. I have reviewed the copies of the written testimony filed by Plaintiffs as Exhibit 3
to their Motion for a Preliminary Injunction. I certify these materials are true and accurate
copies of written testimony and other materials submitted to the Committee during its
consideration of Senate No. 1353. These materials were received and maintained in the ordinary
course of business of the Committee. I attach to this Affidavit true and accurate copies of certain
of that testimony, namely:
a) as Exhibit B hereto, the May 16, 2007 testimony of Melissa Conroy;
b) as Exhibit C hereto, the undated testimony of Gail Kaplan;
c) as Exhibit D hereto, the May 16, 2007 testimony of Attorney General Martha
Coakley;
d) as Exhibit E hereto, the May 16, 2007 testimony of Kelly O’Bryan;
e) as Exhibit F hereto, the May 16, 2007 testimony of Liz McMahon; and
f) as Exhibit G hereto, the May 16, 2007 testimony of Dianne Luby.
6. The Committee does not record the substance of oral testimony received, and did
not make and does not keep any record of the substance of oral testimony received in connection
with Senate No. 1353.
7. The Committee gave a favorable report on Senate No. 1353 on October 22, 2007.
The next day, the Senate voted to amend the bill, engross the bill, and send it to the House for its
concurrence.
8. Senate No. 1353 was debated on the House floor on November 1, 2007. On that
date, the Committee made available to the Representatives on the House floor copies of the
Supreme Judicial Court’s decision on the constitutionality of a 25-foot buffer zone, Opinion of
the Justices to the Senate, 430 Mass. 1205 (2000). The Committee also provided the
Representatives with a set of Talking Points and a Fact Sheet about the legislation. True and
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correct copies of the Talking Points and the Fact Sheet are attached hereto as Exhibits H and I,
respectively. On the same day, the House amended the bill and passed it to be engrossed.
9. On November 5, the Senate concurred in the House amendments, with a further
amendment to add an emergency preamble to the bill.
10. On November 7, 2007, the House concurred in the Senate amendment, also
adopting an emergency preamble to Senate No. 1353.
11. The Senate voted again to adopt an emergency preamble on November 8, 2007.
This second vote was taken in accordance with the requirements of Article LXVII of the
Amendments to the Constitution.
12. Senate No. 1353 in its final form was passed by the Senate and the House on
November 8, 2007. It was signed into law by Governor Deval Patrick on November 13, 2007 as
Chapter 155 of the Acts of 2007, a copy of which attached hereto as Exhibit J.
Signed under the pains and penalties of perjury this __5__ day of February, 2008
________/s/ Adam T. Martignetti________ Adam T. Martignetti
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA, GREGORY A. SMITH, CARMEL FARRELL, and ERIC CADIN Plaintiffs, v. MARTHA COAKLEY, in her capacity as Attorney General for the COMMONWEALTH OF MASSACHUSETTS, Defendant.
Civil Action No. 1:08-cv-10066-JLT
AFFIDAVIT OF VINEETH NARAYANAN
I, Vineeth Narayanan, do depose and state:
1. I am a Paralegal in the Civil Rights Division of the Office of Attorney General Martha
Coakley. The statements set forth in this Affidavit are based on my own personal knowledge
and observations, and to the best of my knowledge are all true and accurate.
2. The Chief of the Civil Rights Division, Maura T. Healy, writing on behalf of Attorney
General Coakley, sent a letter regarding the amended buffer zone law (the “Letter”) to
reproductive health care clinics that may be affected by the amended buffer zone law (“Clinics”)
and to law enforcement personnel. On January 25, 2008, I mailed copies of the Letter to the nine
Clinics we identified in Massachusetts, as well as to the local police department of each
municipality containing one of these Clinics, and to each District Attorney’s office with
jurisdiction over at least one of those municipalities.
3. True and accurate copies of the Letters sent to the Boston Police Department and to the
Brookline Police Department are attached hereto as Exhibit A. The Letters sent to other police
departments and to District Attorney’s offices had the identical text.
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4. True and accurate copies of the Letters sent to the Planned Parenthood League of
Massachusetts (which operates a Clinic on Commonwealth Avenue in Boston) and to Women’s
Health Services (which operates a Clinic in Brookline) are attached hereto as Exhibit B. The
Letters sent to other Clinics had the identical text.
5. As shown in Exhibits A and B, the Letter described the provisions of the statute. It also
included the following guidance regarding how the four exceptions to the buffer zone provision
are to be interpreted and applied:
The Attorney General provides the following guidance to assist you in applying the four exemptions in the prior paragraph, in locations where the buffer zone is clearly marked and posted, and during a clinic’s business hours.
The first exemption — for persons entering or leaving the clinic — only allows people to cross through the buffer zone on their way to or from the clinic. It does not permit companions of clinic patients, or other people not within the scope of the second or third exemptions, to stand or remain in the buffer zone, whether to smoke, talk with others, or for any other purpose.
The second exemption — for employees or agents of the clinic acting within the scope of their employment —allows clinic personnel to assist in protecting patients and ensuring their safe access to clinics, but does not allow them to express their views about abortion or to engage in any other partisan speech within the buffer zone.
Similarly, the third exemption — for municipal employees or agents acting within the scope of their employment — does not allow municipal agents to express their views about abortion or to engage in any other partisan speech within the buffer zone.
Finally, the fourth exemption — for persons using the sidewalk or street adjacent to the clinic to reach a destination other than the clinic — applies to individuals who are crossing through the buffer zone, without stopping, to go somewhere other than a location within the zone and other than the clinic, and who are not using the buffer zone for some other purpose while passing through. For example, an individual may cross through the buffer zone to reach and speak with someone outside the zone, to reach and stand in a location outside the zone (perhaps to engage in lawful protest, other speech, or prayer), or to travel on to another place altogether, provided that the individual does not do anything else within the buffer zone (such as expressing their views about abortion or engaging in other partisan speech).
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6. Additionally, the Civil Rights Division obtained a DVD recording of the May 16, 2007
hearing of the Joint Committee on Public Safety and Homeland Security concerning Senate Bill
Number 1353. The Civil Rights Division hired court reporters Farmer Arsenault Brock LLC to
transcribe sections of the DVD recording of the hearing, including the testimony of Attorney
General Martha Coakley, Undersecretary of Public Safety Mary Beth Heffernan, Norfolk District
Attorney William Keating, Boston Police Department Captain William Evans, Gail Kaplan,
Michael Baniukiewicz, Liz McMahon, and Reverend Susan Criscione. Attached as Exhibit C is
a true and accurate copy of the transcript, including a certification from court reporter David
Arsenault that the transcript is a true and accurate transcript of those sections of the DVD.
Signed under penalties of perjury, this 7th day of February, 2008.
__/s/ Vineeth Narayanan___ Vineeth Narayanan
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Pages 1-52
COMMONWEALTH OF MASSACHUSETTS
TRANSCRIPTION OF VIDEOTAPE OF
HEARING OF THE JOINT COMMITTEE
ON PUBLIC SAFETY AND HOMELAND SECURITY
DATE: May 16, 2007 10:00 a.m.
BEFORE: Chairman Michael Costello
and Chairman Jarrett Barrios
Joint Committee on Public Safety and
Homeland Security
LOCATION: Statehouse, Room B-2
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1 I N D E X2 WITNESS PAGE3 PANEL 14 Representative Marty Walz 65 Representative Carl Sciortino 76 Senator Gale Candaras 97 Representative Michael Festa 118 Attorney General Martha Coakley 149 Undersecretary Mary Beth Heffernan 20
10 District Attorney William Keating 2111 Captain William Evans 2412 Senator Stephen Brewer 2713 Chairman Jarrett Barrios 2814
PANEL 315
Gail Kaplan 3816
Michael Banvecwiz 4117
Liz McMahon 4318
Reverend Susan Criscione 4519
20
21
22
23
24
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1 P R O C E E D I N G S2 CHAIRMAN COSTELLO: We'll begin this3 public hearing. I first want to thank you for being4 here. Second, I want to apologize. Our air5 conditioning isn't on until the end of the month, so6 bear with me.7 Briefly, I want to just share, there8 are a couple of rules that we follow and there are a9 several, but there are a couple that are important
10 that you understand.11 First, it's, of course, a public12 hearing. A lot of people are going to want to13 testify on bills. If you have a cellphone -- and my14 co-chair, Jarrett Barrios is leaving right now. He15 has to go upstairs and chair another hearing. He'll16 be back down in about 15 minutes.17 But first of all, if you have18 cellphones, please turn them off. Second, we're19 going to hold to this rule. We have a three-minute20 rule. If you're going to come up and testify,21 there's a lot of people here. We want to be able to22 hear all your testimony, take that testimony, and we23 ask that you limit your testimony to three minutes.24 I know we have panels. Panels, it's
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1 a three-minute rule, also. However, we are going to2 extend professional courtesies to several of the3 panels that will be here with our elected officials.4 Third, you may see us take elected5 officials out of turn or out of order. That's6 because we are in session today. There is a lot of7 business, a lot of hearings on the Hill and those8 representatives that are members of the general9 court that come, we'll take out of order as a
10 courtesy so that they can go back to their business11 upstairs.12 Again, we are going to take up some13 controversial issues today. You notice that we do14 have, as usual, court officers and police officers15 in the audience. We don't think that that's16 necessary, but we just do want to say that we expect17 this hearing to go orderly. We expect to hear18 testimony both for and against several bills.19 And I will tell you this. The way that20 the bills are going to be laid out today, just so21 you know, you can have a sense of when you might --22 may be testifying, we'll take testimony on each and23 every bill, but we will start with the buffer zone24 bill. There's several panels that I expect are
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1 going to be testifying and probably several2 individuals for and against buffer zones. If you're3 not testifying on that bill, you may want to take 454 minutes, half an hour, 45 minutes and feel free to5 stay. I don't think we'll be receiving testimony on6 any other bill for at least 45 minutes.7 We're then going to move to school8 safety, then to mandatory minimums, then to9 state-funded public safety issues. Again, we may
10 take certain bills out of order, if legislators show11 up.12 I want to start today by introducing13 several members of Public Safety. Senator Brewer,14 our vice-chair, is down at the end. Senator Brewer,15 thank you. Rep. Donelan, Chris Donelan from Orange16 and Rep. DiNatale from Fitchburg is with us. And as17 members come in, I will recognize those members as18 they come in.19 The first bill that we're going to20 hear testimony on and we will hear -- we will hear21 those in favor of a bill , then we will hear those22 opposed to a bill. That's the way that the hearing23 will proceed, so --24 Okay, I've been told that Rep. Walz and
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1 Rep. Sciortino are going to introduce the first2 panel, so without further ado, Rep. Walz and Rep.3 Sciortino.4 REP. WALZ: Asking other legislators who5 are here to come to the stand with us,6 Representative [indiscernible] and Senator7 Candaras.8 We want to just begin briefly,9 Mr. Chairman and Members of the Committee, to set
10 the stage for the hearing. There are many panels to11 hear through, so we promise to be very brief so that12 we can get to the other panels. There's a great13 deal of testimony to come.14 I would like to begin with an15 observation about the proposed amendment to our16 existing buffer zone law. As elected officials and17 as voters, all of us are familiar with a buffer zone18 that currently exists in our law, which is the19 buffer zone that around voting, polling places.20 There is a fixed buffer zone of 150 feet around all21 of the polling places in the Commonwealth, so voters22 can enter polling places unimpeded. That balances23 the voter's rights to come into the polling place24 with the rights of people to participate in the
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1 electoral process and exercise their rights under2 our Constitution to campaign.3 What we're seeking here is to amend4 the existing buffer zone law around healthcare5 clinics to establish a fixed buffer zone of only 356 feet, so much smaller than the 150 feet that we're7 accustomed to around polling places, and so for that8 35 feet, we think that is an appropriate balance and9 one that strikes the right balance between First
10 Amendment rights of protesters and the rights of11 women and other patients and family members and12 staff members to enter unimpeded into the healthcare13 clinics, so to recognize that there are competing14 rights and interests here, just as there are at15 polling places, and we think a 35-foot fixed buffer16 zone strikes the right balance to protect women17 entering and exiting the clinics.18 Thank you very much. Representative19 Sciortino.20 REP. SCIORTINO: Good morning, Carl21 Sciortino [indiscernible]. We're here to say this22 morning to make sure that women and employees of23 clinics can access their healthcare and their24 doctors free from harassment, violence and
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1 discrimination. What we're talking about is taking2 the current law which is an 18-foot permeable zone3 and turning it into a 35-foot fixed zone.4 The current law is an 18-feet ring,5 [indiscernible] if you paint a 18 foot-ring around6 the door, where protestors will line that ring and7 [indiscernible] have hired escorts to go through8 that protest line and pull patients and staff9 through to get into the clinic. That kind of
10 harassment of patients and employees is unacceptable11 in the Commonwealth.12 Free speech rights are fully13 protected under this law. We have to make sure14 people have the right to free speech. Let me15 demonstrate for you briefly what we're talking here.16 I'd like to ask Representative Walz to join me in17 this little demonstration.18 REP. WALZ: Role playing.19 REP. SCIORTINO: From Representative20 Walz to myself is approximately 35 feet. That's21 what we're asking for. Representative Walz, can you22 hear me now?23 REP. WALZ: I am hear you now,24 Representative Sciortino.
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1 REP. SCIORTINO: Thank you. Our free2 speech rights were clearly very well protected. We3 could engage. We could discuss. We could protest.4 We could speak to one another. Our rights to free5 speech are protected, and women can have access to a6 clinic without violence and harassment. Thank you7 for your time.8 CHAIRMAN COSTELLO: Thanks.9 SENATOR CANDARAS: Thank you and good
10 morning, Mr. Chairman. I think Representative11 Attorney Walz spoke eloquently about Chapter 54,12 Section 65, 150-foot zone around people going to a13 polling place. I will read to you very briefly what14 those individuals are prohibited from doing and the15 protections that voters get going into a polling16 place.17 No one may hold a poster, a sticker, a18 card, a handbill, a placard. No pictures, no19 circulars, no shouting of the admonitions to vote20 for a particular person.21 All we're asking for for women going22 into reproductive health clinics is that they get23 the same protections afforded a voter in the24 Commonwealth of Massachusetts. I briefed this
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1 issue, so there's no point for me to talk any more2 about that.3 I also want to talk about other laws4 that are relevant, 209A, of course. Most often when5 people go in for a restraining order, they are6 afforded the protection of half a football field,7 50 yards, half a football field, to protect them8 from verbal and other types of assault.9 So there's plenty of law on the subject.
10 I'm going to submit a brief, which talks about this11 law. As the Senate Chair on the Committee on Mental12 Health and Substance Abuse, I just want to say a13 word about this concept of sidewalk counseling.14 Counseling requires the willing15 participation of both parties. Shouting at somebody16 is not counseling them. More often than not, what's17 being shouted constitutes a verbal assault. Many of18 you are lawyers. You know when you place someone in19 imminent fear of bodily harm, that's assaultive.20 That is not counseling.21 Thank you. I appreciate the22 opportunity to be heard, and I support passage of23 this bill. Thank you.24 CHAIRMAN COSTELLO: Thank you, Senator.
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1 Representative Festa.2 REP. FESTA: Thank you, Mr. Chairman.3 Good to see you, Senator.4 SENATOR CANDARAS: Thank you.5 REP. FESTA: Mr. Chairman and Members of6 the Committee, one of the reasons why I wanted to7 speak, and I'll be specific to a particular point,8 is to give some historical perspective here.9 We, as you know, are operating under
10 a law and an arrangement, if you will, that was11 frankly a brokered compromise at a time when for12 many, many years, no form of buffer zone bill was13 even on the floor of the House to be debated; and I,14 along with a couple of other members of the House,15 in trying to resolve the question of how can we move16 forward, in the process of negotiations with the17 former Speaker, there was a good-faith effort to18 have both those who were concerned about the First19 Amendment issues -- and I would say parenthetically,20 all of us I think in this room recognize that there21 are First Amendment rights here that need to be22 respected -- but those who have that point of view,23 and many of us who shared the concern certainly at24 the time, that without unfettered and reasonable
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1 access to these health services, that many women2 were being intimidated from having those services3 provided in an appropriate manner.4 And so we went through a process of5 negotiation that ultimately resulted in what we have6 now as the law. It was known at the time that it7 was an imperfect compromise, that frankly it wasn't8 clear when we did it whether it was going to really9 make a difference with regard to how we would strike
10 that balance.11 Now, I think it's clear, frankly12 today, that having had the years of this law in13 effect, that substantially the concerns have been14 addressed, but that there are, in fact, defects in15 the law that need to be corrected.16 I think this bill, quite frankly,17 strikes the balance in a way in 2007 that we can18 acknowledge, does give due respect for those who19 feel that they have need to express their objections20 to this whole situation, and at the same time21 acknowledge that 35 feet is quite reasonable, as the22 Senator just pointed out, as the law clearly states,23 when you're dealing with analogous, arguably even24 less compelling concerns with regard to, you know,
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1 voting, et cetera, that 35 feet is frankly very2 reasonable.3 And I think the last point to be4 made is this. If we -- if you as a Committee were5 to recommend this bill, I think the message that6 goes out from that is that a legislature, like the7 law, is fluid, willing to revisit, willing to8 acknowledge that balances and compromise are a9 continuing process, that the law should not be
10 static; and that this bill, I think, fundamentally11 does what needs to be done today, which is to give12 that protection and also afford the right to those13 who are concerned to express their views.14 So I hope you do pass the bill and I15 appreciate your attention.16 CHAIRMAN COSTELLO: Thank you. Anyone17 else?18 REP. WALZ: Mr. Chairman, we have two19 other legislators that are slated to speak, who are20 on their way, Representative Moran and Senator21 Chandler, who have women's healthcare clinics in22 their districts. They'll be joining us at some23 point.24 CHAIRMAN COSTELLO: When they come, just
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1 let us know, if we don't see them first. We'll call2 them.3 Thank you for being here, and thank you4 for your testimony, and I don't think I've ever had5 shorter testimony from two, four, six, eight, ten.6 [Indiscernible]. Thank you.7 REP. WALZ: Thank you, Mr. Chairman.8 CHAIRMAN COSTELLO: We're going to move9 on to -- we have several panels that have requested
10 to be heard as a panel, and we will go -- in due11 deference, we'll bring up the public safety12 perspective from our Attorney General Martha13 Coakley, along with the attorney general. I think14 someone from Sheriff Cabral's office may be here,15 also.16 I think someone from the D.A., Bill17 Keating is here. Boston Police Captain Bill Evans18 is here and Undersecretary of Criminal Justice, Mary19 Beth Heffernan.20 Thank you all for being here.21 And Madam General, I think we'll start22 with you.23 ATTORNEY GENERAL COAKLEY: Thank you,24 Chairman Costello. And I want to thank Chairman
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1 Barrios and the entire Committee for our opportunity2 to be heard. My understanding is the Sheriff has an3 illness in her family and will not appear today, but4 I know that she is in support of this bill.5 I will not duplicate what you just6 heard very effectively from the legislators on the7 wisdom of the passage of Senate Bill 1353, but I8 want to add a couple of different points this9 morning. I would note that part of what we want to
10 stress is that this is a much-needed now and11 warranted change in the law that I believe balances12 appropriately the Constitutional concerns and the13 public safety concerns, and let me just address that14 very briefly.15 As you know, the only changes that16 we are recommending, that the bill recommends that17 we are in support of, is the change in the size of18 the zone and the fact that it be fixed; in other19 words, instead of having an 18-foot with a 6-foot20 floating piece inside, it only makes sense, I21 believe, to establish something fixed, if only from22 a law enforcement perspective. Let me just address23 that for a minute.24 What you just saw ably demonstrated
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1 by Representatives Sciortino and Walz was how it2 would work in the 35-foot zone, and I want to tell3 you why it doesn't work now, and I want to show you4 a very short clip of what actually happens in one of5 the clinics because the bill is vague and because it6 is unenforceable.7 Keep in mind, also, that the8 majority of women clients, who are entering these9 facilities, are going in for normal procedures,
10 updates on a GYN exam, to get birth control bills.11 There are clients who are going in for procedures to12 terminate, abortions, but many of them are not. All13 of them are presumably in a situation where there's14 a healthcare situation. It is stressful for them.15 It is not appropriate for them to be approached in16 the way that I'll show you shortly happens17 [indiscernible] manner.18 This is a time when those people19 going into the clinics, particularly, should have20 the protections that a 35-foot zone would give them,21 and I would note specifically, as mentioned by the22 legislators, when people are going to vote, they get23 a 150-foot zone, and we don't protect anything more24 than we do political speech, the ability to talk
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1 about issues and political speech, so that certainly2 gives you the reasonable basis for a 35-foot zone3 that is appropriate.4 When women approach facility5 entrances, they're routinely confronted by6 protestors who stand often inside the existing7 18-foot buffer zone throughout the week on a daily8 basis, and there are protestors who take these up as9 shifts, as a regular position for them. They will
10 -- on Saturdays, for example, as many as 50 to 7011 protestors are here at Boston's Planned Parenthood12 location. They sometimes include groups of school13 children, who are bussed in from various cities and14 towns by anti-abortion organizations.15 We also have employees, volunteers,16 patients and prospective patients who are routinely17 harassed as they try to enter and exit facilities.18 In Boston, which has a recessed door at the Planned19 Parenthood facility, protestors are able to stand20 close to the entrance, with some protestors standing21 right at the entrance.22 Demonstrators regularly crowd23 facility entrances and surround women, facility24 employees, and volunteers with graphic and
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1 discomforting pictures and shout and taunt, calling2 baby killers and murderers, and I would ask you to3 look briefly now at a clip of what happens on a4 regular basis. This is not an unusual5 demonstration. This happens almost routinely at6 many of these clinics.7 The protestor has the yellow8 raincoat on. You can see that as -- and I know it's9 a little jerky, but as this woman in the corner
10 approaches, the individual in the yellow raincoat11 approaches, follows her into the entranceway.12 There's no audio here, but you can imagine that13 there's verbal approach here. There's been no14 consent given to speak.15 You can see that another person16 comes -- the person in the blue is also a protestor.17 They approach, I believe breaking the law on a18 routine basis, the laws that currently exist,19 individuals who are entering the clinic. Here are20 workers for the clinic who clearly are approached,21 are touched. That's clearly against the law, by22 people who -- I'm not questioning the sincerity of23 their beliefs, but do not, I believe, have the right24 to harass and intimidate under the Constitution.
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1 Again, the protestor in the2 raincoat, everybody who comes by is approached with3 that sign, with verbal intimidation, and4 particularly as we get to the end, you'll see that5 there's an individual who approaches the car, sticks6 her head in the car [indiscernible].7 This is an unenforceable, 6-foot8 loading buffer zone, and I do this not because it's9 so dramatic, (short skip in DVD) Boston Police or
10 Brookline police, everyone to enforce the law.11 It's difficult to make that12 determination, so as just a practical matter from a13 law enforcement point of view. The Legislature, in14 its wisdom, should say that we want to cut down on15 the traffic problems, the ways in which these16 interactions both break the law and can inspire17 other incidents that would be against the law.18 I think you will hear from the19 Boston Police, who deal with this, that it's become20 an enforceable -- unenforceable law, and I would21 note that if the bill is passed, as I know you know,22 there is still protection within the 35-foot buffer23 zone for the First Amendment rights of those24 protestors.
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1 Seven years ago our Supreme Court2 reviewed an earlier proposed fixed buffer zone for3 25-feet. They determined that was Constitutional in4 light of other regulations that have been deemed5 Constitutional, and other courts have upheld fixed6 buffer zones. I believe that this Legislature can7 find that it is both wise and Constitutional, and8 appropriate and needed to pass this bill, and I urge9 your support on it. Thank you.
10 CHAIRMAN COSTELLO: Thank you, Madam11 Attorney.12 UNDERSECRETARY HEFFERNAN: Thank you,13 Mr. Chairman. Good morning. My name is Mary Beth14 Heffernan. I'm the Undersecretary for Criminal15 Justice, and I am here representing Secretary Burke16 and offering remarks in support of Senate Bill 135317 on behalf of Governor Patrick and Lieutenant18 Governor Murray this morning.19 Thank you very much for the20 opportunity to offer testimony here today, and the21 Governor is delighted to join with Attorney General22 Coakley in support of this bill.23 This legislation would increase the24 buffer zone surrounding entrances and driveways of
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1 the reproductive health facilities in the state.2 Clinics have documented, as you can see on the video3 as well, they've documented the following violations4 by protestors: Folks dressing up as Boston police5 officers, asking for patients' names and contact6 information, blocking access to the front door of7 the clinic, consistent screaming at patients,8 employees inside the bubble zone, touching the arms9 and shoulders or backs of the patients or employees
10 as the General suggested, standing in front of cars11 and with a keypad to block patient and employee12 access to the garage, photographing and filming into13 patient and employee cars.14 I would also like to just offer in15 general on behalf of Governor Patrick and Lieutenant16 Governor administration our strong for this bill.17 We believe it is necessary to protect those seeking18 and providing reproductive medical care, and we hope19 that this Committee will report the bill up20 favorably. Thank you very much.21 CHAIRMAN COSTELLO: Thank you.22 Attorney Keating.23 ATTORNEY KEATING: Thank you, Chairman.24 Members of the Committee, I've been on your side of
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1 this issue sitting at that side like you just said.2 Also for the record, I'm District Attorney Bill3 Keating from Norfolk County.4 As a legislator, as a former chair5 of this Committee, I am also aware, as you are, of6 the very high level of emotional feelings on both7 sides of the issue. The issue itself probably8 doesn't need a great deal of analysis. I think9 we're all capable of knowing the difference between
10 18 feet, as I was when I was there, and 35 feet; but11 I have, as a former co-sponsor of the original12 legislation and in the position I am now, become13 keenly aware of the value of it.14 A lot of the things we do in our15 office, a lot of the things we try and resolve16 through the courts, really are preventative in17 nature. We try and really calm things down and not18 have things escalate to a violent situation.19 The original bill was compromised20 and as a result, I think, after having the ability21 to look at how it functions, and I have a clinic22 that's in part of Norfolk County, I've seen a couple23 of things.24 First, it was a clinic that's now closed
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1 but one, the buffer zone, even on the limited basis,2 was of some assistance in trying to keep a secure3 and peaceful situation from strong feelings on both4 sides at bay.5 Also, there's another clinic that6 just logistically works, that it really is an7 artificial buffer zone, the entrances are such that8 it doesn't create a problem and there's no problems9 there, to my knowledge, talking to local police.
10 So the concept of providing a buffer11 zone is something that does prevent the possibility12 of violence and strong feelings on both sides to13 escalate, and that's something that we should all be14 aware of.15 You know, one good thing about16 presenting this to the Committee at this time is17 there's no tragic situation currently in the news.18 It's not a situation where the Legislature has a19 feeling that they have to act out of one terrible,20 chaotic instance, and that is always a good climate21 to review pieces of legislation. What I would22 suggest is there would be a lot of energy, there23 would be a lot of scrutiny, there would be a lot of24 attention and clamor to act should a tragedy occur.
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1 So I would urge this Committee to2 act before anything like that occurs again, as the3 tragedy in Brookline years ago, that really did4 bring the attention towards the potential for5 violence around clinics. So that I hope that we can6 improve the law. We're all sensitive to the7 Constitution, we all take an oath to meet those8 standards of protecting free speech, but at the same9 time, afford I think a more peaceful setting and
10 work in the really spirit of preventing violence11 from occurring.12 Certainly none of us, whether you're13 for or against a woman's right to choose, no one14 supports violence. So I think this would be very15 helpful and I hope that in the final [indiscernible]16 you can look to act favorably. I think it will be17 beneficial.18 CHAIRMAN COSTELLO: All right. Before I19 go to the Captain, I want to introduce my right20 [indiscernible] and my Co-Chair in the Senate,21 Jarrett Barrios, who's come back from the other22 meeting he's chairing.23 With that, I go to Captain Evans.24 CAPTAIN EVANS: Good morning, Chairman
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1 Costello and Chairman Barrios, Committee Members.2 My name is Captain William Evans. I'm currently the3 commander of South End, Back Bay, Lower Roxbury and4 the Fenway section of the City of Boston. For the5 last nine years prior to this assignment, I was6 commander of the Allston/Brighton section of the7 city.8 I became very familiar with what was9 happening at 1055 Commonwealth Ave., which is
10 Planned Parenthood. I know every day we had to deal11 with the issues in and around the Planned Parenthood12 Center out there. This law, the way it stands, the13 current buffer zone with the 18-foot buffer zone,14 makes it very difficult for us to enforce the law.15 A lot of people are under the16 misconception that it prevents protestors from going17 into that buffer zone, which is incorrect.18 Protestors can stand up right in front of the door.19 A lot of them hold signs right there. As long as20 they stay stationary, you know, they can stand in21 front of that door.22 What they have to do is make an23 approach. Now what an approach is is very hard to24 determine; whether they stick out their hand, that's
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1 an approach; where they take a step forward, that's2 an approach. Basically, it turns us into basically3 something like -- I like to make the reference of a4 basketball referee down there, where we're watching5 feet, we're watching hands. We're watching to see6 if there's any movement of the protestors, you know.7 Week in and week out, we are8 constantly receiving calls down there, both from9 protestors and from Planned Parenthood on
10 violations. I think clearly having a fixed buffer11 zone, where everyone knows the rules and nobody can12 go in that and protest, will make our job so much13 easier. I think you've seen in the video; you see14 what we have to deal with. You know, it's a very15 difficult rule to enforce.16 You know, there's the misconception17 that it's a fixed area where no protestors can go.18 That would be great. That would make our job so19 much easier.20 Right now, you know, it's constant21 watching. It's constant tying up of resources and,22 you know, we've had to deal with [indiscernible]23 seven years. I've been down there numerous24 Saturdays where we have over 100 protestors every
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1 Saturday and a lot of them go right up in the faces2 of patients entering the premises.3 So I encourage the Committee and the4 legislators to support this bill. Not only will it5 safeguard the patients going in there, but it will6 also make the public safety official's job a lot7 easier. So I welcome the 35-foot buffer zone.8 CHAIRMAN COSTELLO: Thank you. I'm9 going to open it up, if you don't have any
10 questions.11 Senator Brewer?12 SENATOR BREWER: Thank you, Mr. Chairman13 and to all of you, it's like deja vu all over again14 to me, because I was on this Committee when we15 vetted this thing this the last time, quite16 honestly. But the logic continues, and that is,17 this bill was not referred to the Department of18 Public Health, even though we talk about19 reproductive health today. It was referred to the20 Committee on Public Safety.21 Half the distance from home plate to22 the pitcher's mound is 35 feet, quite honestly.23 It's not a long distance. We have the Attorney24 General, the distinguished Attorney General. We
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1 have the Captain of the Police Department,2 Undersecretary of Public Safety here, the District3 Attorney here today. I'm sure there are many4 district attorneys right behind you that would be5 here as well.6 This is about public safety. The7 most enormously troubling decision that a woman has8 to make, and it is protected. Whether people like9 it or not, it's protected by the United States
10 Supreme Court, and to allow in the interest of11 public safety -- not any person, whether they're12 pro-life or pro-choice -- to me it's about public13 safety.14 And I think that this request is15 reasonable and well thought out. And if you, this16 panel, has a large amount of gravitas, the issue of17 public safety. And I support it, and I have18 supported it in the past.19 Irrespective of your view, pro-life20 or pro-choice, [indiscernible], I'm going to have to21 leave [indiscernible] Senate Ways and Means. I22 think everybody at this table has strong views on23 certain line items, maybe everybody in this24 audience. But I have to go, but I appreciate the
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1 opportunity to speak to this issue. Again, it is2 about public safety. Thank you.3 CHAIRMAN COSTELLO: Thank you, Senator.4 SENATOR BARRIOS: Good morning and5 welcome. We greatly appreciate such a distinguished6 panel supporting this legislation. I am the sponsor7 of this legislation and therefore delighted you8 could take the time to support this effort, and many9 of us in the Legislature are working on it.
10 So I don't want you to misinterpret my11 question as critical, but what I would like to do,12 since I've got three of the finest lawyers in13 Massachusetts in front of me, and one of the leading14 arguments that is made in opposition to this is15 infringement on First Amendment rights which the16 federal government, and obviously there's a state17 equivalent to that. The Attorney General is in18 charge of enforcing that particular Constitution.19 I'm interested in your thoughts on why,20 because we will have testimony later that will21 indicate that this is an impermissible infringement.22 It goes beyond reasonable time, place, and manner23 restrictions on certain types of speech. And I'm24 interested in your thoughts, if you have any,
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1 specifically as to why that's not the case. Why2 isn't that permissible?3 We clearly have Supreme Court and4 Supreme Judicial Court precedent for that, but I5 don't know if you have any observations that go kind6 of beneath, to particular case about this.7 ATTORNEY GENERAL COAKLEY: Just in8 general, Senator, and believe me, I think all four9 of us take that right of the First Amendment
10 extremely seriously, and I think Senator Brewer11 pointed that out.12 This is a right that the Supreme Court13 has consistently said we allow for time, place, and14 manner restrictions on and for appropriate15 reasoning. There's always a balance involved,16 whether it's advertisement to children or it's a17 political speech. You know, you can't shout fire in18 a crowded -- you remember these rules from19 first-year law school.20 It is important to balance that, and21 I think it's an appropriate question and I think the22 Legislature has to weigh this. But when we are23 looking at the right to speak, which we know has24 restrictions that can be put on it when it's
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1 appropriate, and we know the Supreme Court had found2 the right to hear, in terms of advertisers, lawyers3 never used to be able to advertise, Bates versus4 Arizona. Certainly the court said, there is an5 audience out there. People have a right to be6 heard.7 But there is no right in either our8 Constitution or the U.S. Supreme Constitution for a9 particular person to be heard by a particular
10 person, and so this is my own little analysis of the11 Supreme Court rule, but I think it's important to12 remember that Individual A does not have a right to13 corner Individual B so that Individual B can hear14 his or her rights.15 Now, having said all that, this is16 clearly a constitutional time, place, and manner,17 rule that promotes other goals including the18 Constitutional rights of those attending the clinic19 and the rights involved with public safety and fair20 access, and making sure we won't have car accidents21 and, frankly, there are a lot of other things the22 Boston police can comment on but, you know, there's23 rational, reasonable ways that you can do this24 balance that does not offend either the U.S.
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1 Constitution or our Constitution based upon case law2 and the analysis behind the reasoning involved in3 this statute.4 ATTORNEY KEATING: And I would5 complement that with one other perspective, and6 that's clearly a priority legal issue. The final7 argument has been added, which I think you were8 asking for what other knowledge is appropriate.9 I also view this in a Constitutional
10 sense as a contest of competing freedoms, freedom of11 speech and the freedom Constitutionally for a12 woman's right to choose and right to privacy. So13 that not only do you have restrictions on public14 safety versus free speech, but I also think there's15 a perspective of this as well where you have one16 freedom and another freedom, and you're trying to17 work to allow both of those freedoms to be18 exercised.19 CHAIRMAN COSTELLO: A quick question.20 UNDERSECRETARY HEFFERNAN: I just wanted21 to say, I'm the youngest of the three lawyers here,22 [indiscernible]. I agree with both points; and I23 think most importantly, no one has a right to touch24 anyone within that zone . No one has a right to
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1 yell into cars in that zone.2 One has to balance, certainly, both3 rights as the District Attorney mentioned and as the4 Attorney General mentioned. Public safety has --5 has a lot to do these days, and I think one of the6 things that we can do with a law like this is make7 sure that everyone is protected within the8 Constitution of both the United States and the9 state.
10 So I think that this law will do11 that. I think it will make it clear what people12 need to do to exercise their freedom of speech13 rights, and I urge you to pass it.14 CHAIRMAN COSTELLO: Captain, real15 quickly, do you -- how many arrests have you made16 down at, for instance, Commonwealth under the17 current condition?18 CAPTAIN EVANS: I would say, Chairman,19 no more than five or so arrests. I know within the20 last year I've made one myself outside, inside the21 buffer zone. Again, a very difficult law to22 enforce, what an approach is, what isn't. I mean,23 like I said, people can stand inside the buffer24 zone, and given the current set up of Planned
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1 Parenthood there, their door is in 10 feet of --2 actually, their buffer zone is really only 8 feet3 outside because of the setup.4 So it's such close quarters as it is5 there that everybody is in everybody's face, no6 matter what. So the buffer zone basically is no7 good, it really isn't, because just the proximity.8 It's almost like a goalie's crease out there, you9 know. It's like if you're in there, you're going to
10 be within the 6 feet, no matter what.11 So given that fact, it makes it very12 difficult for us to say someone is violating it13 because they're allowed to stand outside the door,14 with the sign in their hand.15 CHAIRMAN COSTELLO: I think you've given16 us an explicit explanation what an approach is. And17 again, have you ever charged with criminal18 threatening or harassment or some of the newer -- I19 know we started stalking and out and out harassment,20 have those been employed at all?21 CAPTAIN EVANS: Yeah. We've trying22 everything, honestly. We've tried violation of the23 buffer zone, and we've brought a few cases up to24 Brighton Court and the court has basically not
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1 supported us in that, you know what I mean, given2 the First Amendment.3 Chairman, we know all the players4 down there. We know the regular protesters. We5 back up the stay-away orders and nothing seems to6 work down there.7 I think you've seen the video. You've8 seen the pictures here. They are wearing police9 hats and police uniforms. We've asked the court to
10 stop them from doing that but again, First Amendment11 right. They're not identifying themselves as12 policemen. They're just wearing, you know, outfits13 that they can buy.14 Unfortunately, there's a lot of15 paraphernalia out there they can buy. But we've16 tried everything, and I think the only thing17 honestly that will keep these people out and the18 patients safe is to establish a fixed zone. That19 way there's no watching feet, watching hands and20 allowing protestors right up in their face.21 ATTORNEY GENERAL COAKLEY: Chairman22 Costello, if I could just add to that. You know23 from your experience that it is difficult for the24 Boston Police on the scene to determine whether
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1 there's probable cause. The ability to enforce that2 in a courtroom beyond a reasonable doubt is almost3 nil, and the other statute you mentioned or at least4 one other circumstance is that for many of these5 people, it's a one-time occurrence, stalking their6 cars.7 This is a very unique situation, and8 I think as District Attorney Keating said, has a9 great ability to resolve problems before they start.
10 CHAIRMAN BARRIOS: I have a question for11 the Captain. I'm looking at that photo. I just12 want to make sure, because I'm not sure everybody in13 the audience can see that. That's a photo,14 presumably that is a photo of somebody who has15 driven up to go into the clinic, right? And the16 person who's face -- who's standing next to the car17 has a shirt, the back of which says Boston Police.18 Now, my understanding is the way the19 law currently works is, if that person were to20 approach, the person in the car might reasonably21 expect that person to be the Boston Police because22 they have a shirt saying they're the Boston Police.23 CAPTAIN EVANS: Right.24 CHAIRMAN BARRIOS: And so if the person
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1 in the car were to say, oh, okay, because they think2 it's a police officer, not a person, then that3 person's allowed to legally be within 6 feet of4 them, right? There's nothing you can do --5 CAPTAIN EVANS: Right.6 CHAIRMAN BARRIOS: -- to enforce the7 law, once that other person discovers, in fact, this8 person is impersonating a police officer and not9 actually a police officer.
10 CAPTAIN EVANS: That's correct. I mean,11 the whole question of whether they're consenting is12 what happens here and the fact that they started13 talking to them, we've found that that's consent14 basically.15 So it's a very difficult law, and we've16 tried to prevent them from wearing what they're17 wearing but we've had no luck with that, so it's18 very difficult.19 These two individuals are down there20 day in and day out. You know, they've been21 arrested, both of them have several times, but you22 know, they're back there every day, every Saturday.23 SENATOR BREWER: Mr. Chairman, if I can24 add something to this. This committee will be
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1 hearing legislation in the upcoming sessions2 regarding impersonating a police officer. Under my3 desk in my Statehouse office right now, I have a4 full police uniform that I got from Fox 25 News when5 they did a thing last year, quite honestly.6 I'm going to have a staff person attend7 this hearing wearing that and you will see exactly8 how close that it looks, and you can go right down9 to the uniform store and buy this. And there are
10 multiple kinds of assaults, of women being pulled11 over by people impersonating a police officer, and I12 hope this Committee when they hear that bill, takes13 some proactive measures to make sure that it's a14 very large penalty for impersonating a police15 officer.16 People are being assaulted more times17 than you realize by this and I think it will be very18 revealing when we have this -- when my staffer comes19 in wearing that uniform and you won't really know.20 [Indiscernible].21 COMMITTEE MEMBER: Maybe I'll come in22 wearing it.23 CHAIRMAN COSTELLO: Thank you.24 [Indiscernible].
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1 CHAIRMAN BARRIOS: Thank you for your2 time.3 CHAIRMAN COSTELLO: I'm going to move on4 to Panel 2.5 [End of this portion.]6
7 [Resume at Panel 3.]8 CHAIRMAN COSTELLO: With that, I'm going9 to go back to the third panel, Gail Kaplan, Mike
10 Baniukiewicz -- Baniukiewicz, Liz McMahon, Susan11 Criscione.12 Why don't we start off with Gail, Gail13 Kaplan?14 MS. KAPLAN: Hi. My name is Gail15 Kaplan. I've been escort at -- I volunteer at16 Planned Parenthood.17 SPEAKER: Speak louder, please.18 MS. KAPLAN: Yes. My drama class has19 come into play. I've been an escort. I also do20 counseling and referral at Planned Parenthood, but21 I'm here to talk as an escort who is out there and22 has been out there one Saturday every month for ten23 years, and I can tell you there's nothing silent24 about these people.
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1 The few that are silent with signs2 stand at an appropriate distance and they're not the3 problem. The problem are the people that move into4 -- practically into the clinic or very close, and I5 don't have any objection to them shouting. They6 have a right to shout.7 They don't have a right to, in my8 opinion, get in everyone's way, prevent people from9 walking into the clinic. The patients that are
10 walking, and the reason we're there is to escort11 patients into the clinic among all of these12 protestors.13 What I discovered in the last years14 is that they're getting closer and closer to the15 front door and the law is very difficult to enforce16 and I understand that, but they're getting so close17 that patients are terrified to even walk into the18 clinic. I've had people ask me, isn't there a back19 way but, of course there is, but [indiscernible] in20 the back way. So wherever they go, it's very close.21 They not only approach people22 verbally, they approach them physically. In23 particular, when it rains, they bring these huge24 umbrellas and try to knock the escorts out of the
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1 way. I've had to -- I've nearly fallen several2 times. They're very abusive to the escorts to3 distract us from noticing when patients are trying4 to come into the clinics.5 So they hand out brochures. They6 hand out leaflets inside the buffer zone, and I7 don't have -- I mean I have a problem with their8 brochures, but I'm not there to make a political9 statement. I am there to escort patients into the
10 clinic safely.11 If a buffer zone law is enforced, if12 we pass an enforceable buffer zone law, patients,13 escorts and Planned Parenthood employees could14 safely walk into the clinic, and believe me, if you15 would ever go out there on a Saturday morning, they16 -- you can hear them from blocks away, that 35 feet17 would not prevent them from being heard.18 CHAIRMAN COSTELLO: Thank you.19 Michael.20 MR. BANIUKIEWICZ: Good morning,21 Mr. Chairman. My name is Michael Baniukiewicz. I'm22 in charge of security for Planned Parenthoods, State23 of Massachusetts. I'm privileged to be able to see24 all the Planned Parenthoods from Springfield to
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1 Boston, so I have an idea of what goes on at all of2 them as far as protestors go.3 It's a terrible situation safety-4 wise for everybody on the street, especially in5 Boston. Protestors will stop anybody who walks by6 the building and attempt to counsel them. They7 place four of their protestors, especially on8 Saturdays, right on the curbstone of the buffer9 zone, so when people try to park there to let a
10 patient out, they can't get out because they've got11 it blocked. So once they come out and they're12 outside of that buffer zone, they're fair game as13 far as they're concerned.14 I've had it happen to myself where I15 was standing outside of the clinic, trying to get16 people into the clinic, and the protestors came17 right up to me and right into my face inside the18 buffer zone with their pamphlets saying, see this,19 this is what you let them do over there, and my20 statement to her was, you know, I'm working here.21 I'm in the buffer zone. You have no right to talk22 to me, to which she'll tell me that, well, you're a23 employee here so you don't count.24 The safety issue is scary. It's not
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1 only for the patients and the people that are2 employed at Planned Parenthood, but the general3 public walking across the street and even for the4 protestors themselves, because they tend to try to5 antagonize everybody coming in. They will look to6 start a fight, and obviously that's keeping people7 from entering the building.8 And we have to go out there and not9 only protect our employees, the patients coming in,
10 but also them at times because of the -- it's a11 stressful situation for the people coming in. It's12 probably the most stressful thing they're ever going13 to do in their life, and when the significant other14 is with the patient, they're probably twice as15 incensed as anybody there, and to have a person come16 into their face or into their partner's face and17 start screaming at them and believe me, they do18 scream, it's just, you know, not fair and you know,19 the last woman, you know, stated First Amendment20 rights.21 But when do their First Amendment22 rights get put in a position where the rights of the23 patient are -- You'll have to excuse me. I'm a24 little nervous, but I'm trying.
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1 CHAIRMAN COSTELLO: We'll move on to2 Liz.3 MS. MCMAHON: Thank you very much for4 the opportunity to speak. I've been escorting at5 Planned Parenthood on Commonwealth Ave.6 [indiscernible].7 CHAIRMAN COSTELLO: Can you speak up?8 MS. MCMAHON: Sure. I've been escorting9 for four years on Commonwealth Ave. and I just
10 wanted to draw the distinction for people who aren't11 familiar with what goes on between what you might12 think about as protesting and what the protestors13 there are actually doing.14 They are not saying, you know, don't15 get an abortion because an abortion is fundamentally16 wrong. They're saying, don't get an abortion17 because you're going to die and I'll show you where18 the ambulance is going to pull up and take you away;19 or they say things like, don't bother going in the20 garage, the garage is closed when the garage is, in21 fact, open.22 What they are doing now -- an23 expanded buffer zone is the bare minimum that you24 could do to help people safely access the clinic.
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1 We've seen protestors follow patients when they2 leave the clinic for up to two and three blocks3 away, still speaking to them. Those things are4 another very troubling issue that this won't even5 get to. This is a bare minimum to help people be6 able to get in.7 And the other thing I would add is8 they're not targeting only people who are going in9 as patients to the clinic. They're targeting anyone
10 who walks on the sidewalk, a very busy sidewalk,11 near a major grocery store and near a university.12 If they say no, I'm not going to the clinic, they'll13 say, you know someone, you know someone. Give them14 this pamphlet, tell them about how people die here.15 I see this as a larger community safety issue.16 Again, thanks very much for the17 opportunity to talk and if you have any -- if you18 ever have a free Saturday, stop by and see what19 happens so you can see it.20 CHAIRMAN COSTELLO: Susan.21 REVEREND CRISCIONE: Good morning. I'm22 Reverend Susan Criscione. Thank you for this23 opportunity to share with you this morning about my24 own experience about other women of faith and their
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1 experience, as well as my experience serving on the2 Women's Coalition for Reproductive Choice here in3 Massachusetts. I also serve as the director of a4 domestic violence shelter in Roxbury, Massachusetts,5 currently that's affiliated with the Unitarian6 Universalist Urban Ministry.7 I'm here to express my support for8 Senate Bill 1353 and relative to public safety. I'm9 here to speak about my own experience at one time
10 when I was younger, choosing an abortion. I'm here11 to speak about speaking with other women who have12 chosen abortion and have come into contact with13 anti-choice protestors outside of the clinic, and14 I'm also here just to talk about the reality and how15 difficult it is when we counsel those individuals16 that call us and the ways in which their own faith17 is questioned, their own understanding of their18 ability to make a moral choice in their lives is19 questioned by those who stand outside the clinics20 and judge them and condemn them and try to21 intimidate them.22 I'm an ordained American Baptist23 minister. I was raised in the Church by faithful,24 God-loving parents, who wanted me to know that God
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1 loved me fully and the choices that I made in my2 life. When I was a young woman, I discovered I was3 pregnant and through much prayer and soul-searching4 decided that I would have an abortion. On the day5 of my appointment at the clinic, I was confronted by6 the protestors who called me a baby killer, told me7 I would go to hell and held up pictures and signs8 that intimidated me.9 I still went through with my decision to
10 have an abortion. However, the grieving process, I11 must say, was different because of the judgment I12 sensed from these people -- so-called people of13 faith. I knew and trusted that God was with me14 through my decision and that God loved me for who I15 was completely. I also trusted that God loved the16 not-to-be within me.17 I have encountered anti-choice18 protestors in a variety of different settings, on19 Commonwealth Avenue, as well as at protests outside20 of a welcoming and affirming gathering in my own21 denomination. My own son, when he was three years22 old, was confronted, as we tried to gather in an23 annual meeting with welcoming and affirming of gay24 lesbian folks, with protestors holding up signs
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1 around the issues around abortion, showing him signs2 and terrible paraphernalia and asking me, why are3 these people here, mamma; and trying to figure out4 how to describe that to him has been very5 challenging and confusing for me.6 Currently, I serve as the chair of7 the Religious Coalition for Reproductive Choice here8 in Massachusetts. We offer a hotline that women can9 call and we work very closely with Planned
10 Parenthood, so if people are going through11 counseling or doing phone counseling and spiritual12 issues come up, they refer them to our hotline. And13 we have about ten clergy that take calls and talk14 with people about all the choices that they can make15 around reproductive health decisions.16 One of the most troubling things for17 these individuals is the protestors that they18 encounter outside of Planned Parenthood and other19 clinics in the cities where they live, and it's hard20 for us to remind these individuals and to give them21 counter-messages from some of those religious22 messages that they're receiving.23 The voices and the signs and the24 overall message of anti-choice protestors is
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1 incredibly intimidating, and we believe that women2 of all faiths and of no faith at all deserve the3 opportunity to make a choice for abortion or get4 care from a reproductive health clinic without fear5 of these individuals.6 As a person of faith, a clergy7 person, and on behalf of other women and men of8 faith who are making the decision for abortion and9 are striving for better reproductive healthcare for
10 -- in caring for their bodies, I urge you to support11 the buffer zone bill. This is a bill for the12 protection of individuals from being harassed, as13 they're making the best choices and decisions that14 they can for their bodies and for their families,15 trusting that their God is with them throughout the16 process.17 Thank you for this opportunity to share18 with you.19 CHAIRMAN COSTELLO: Any questions for20 the panel? Jim.21 UNIDENTIFIED LEGISLATOR: Thank you,22 members of the panel. I probably should have asked23 this question when the [indiscernible] young lady24 from Planned Parenthood was testifying, but I was
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1 called out of the room.2 Does anyone know or can testify to, is3 there any evidence, anecdotal or otherwise, as to4 how many women turn away, not because they may have5 been converted by the sidewalk counseling6 so-to-speak, but out of fear?7 MS. MCMAHON: I can tell you I've had8 personal experience with several people leaving on a9 Saturday and by telling them there aren't as many
10 protestors during the week and they opted to make11 appointments during the week, and that's probably12 happened -- I mean not a massive amount of times,13 but actually more recently, it's happened two or14 three times.15 REVEREND CRISCIONE: We talked to --16 UNIDENTIFIED LEGISLATOR: I'm sorry.17 REVEREND CRISCIONE: We talked to two18 women on the hotline that have had that same19 experience, of making an appointment on a Saturday20 and then deciding that they were going to go later21 in the week because of the difficulty.22 UNIDENTIFIED LEGISLATOR: As the chief23 of security, have you seen that?24 MR. BANIUKIEWICZ: I've seen on a weekly
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1 basis, I can tell you that at the facility in2 Chestnut Hill, they probably have at least one or3 two women who leave because they're afraid to enter4 the parking lot because they block the parking lot5 entranceway, they will block so as not to allow the6 car to come in, and then we have the other7 protestors dressed in paraphernalia who will come8 over to the window with a clipboard and ask them to9 please sign in before they come through the
10 driveway.11 MS. MCMAHON: You can also see people12 circling in the same car around and around, and13 every time they pull up, you can see that they want14 to go out and they'll ask where is the garage and15 then they never stop.16 CHAIRMAN COSTELLO: Okay, thank you very17 much. We appreciate that.18 [End of this portion of hearing.]19
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8 C E R T I F I C A T E9
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12 I, David Arsenault, assisted by Roberta13 Katz, do hereby certify that the foregoing14 transcript is a true and accurate transcript of the15 requested sections of the DVD provided to me by16 Anna-Marie Tabor, AAG, to the best of my skill,17 knowledge and ability.18
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24 David Arsenault, RPR
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1
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA, GREGORY A. SMITH, CARMEL FARRELL, and ERIC CADIN Plaintiffs, v. MARTHA COAKLEY, in her capacity as Attorney General for the COMMONWEALTH OF MASSACHUSETTS, Defendant.
Civil Action No. 1:08-cv-10066-JLT
AFFIDAVIT OF RICHARD A. POWELL
I, Richard A. Powell, do depose and state:
1. I am Chief of Staff for Senator Cynthia S. Creem. I have held this position since
2004. Prior to that, from 1999, I was Senator Creem’s Legislative Director.
2. From 1999 to approximately 2003, Senator Creem served as Senate Chair of the
Joint Committee on Criminal Justice (“Committee”). During this time, I shared the duties and
responsibility for the keeping and maintenance of records pertaining to testimony received by the
Committee in connection with bills pending before it during the time that Senator Creem served
as Committee Chair. I continue to have shared responsibility for the keeping and maintenance of
such records. In addition, during the time that Senator Creem served as Chair, I shared
responsibility for keeping track of Committee bills as they progressed through the legislative
process.
3. Senate document No. 148, An Act Relative To Health Care Facilities, was
referred to the Committee on January 6, 1999.
4. On April 15, 1999, the Committee held a public hearing and received written and
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2
oral testimony on Senate No. 148. The Committee does not record the substance of oral
testimony received, and does not have a record of the substance of oral testimony received in
connection with Senate No. 148.
5. Attached hereto are true and accurate copies of certain written testimony the
Committee received in connection with Senate No. 148 on or about April 15, 1999, to wit:
a) as Exhibit A hereto, the April 15, 1999 testimony of Dr. Maureen Paul;
b) as Exhibit B hereto, the April 15, 1999 testimony of Alice Verhoeven;
c) as Exhibit C hereto, the April 15, 1999 testimony of Karen Caponi;
d) as Exhibit D hereto, the April 15, 1999 testimony of Filomena Katia Natale;
e) as Exhibit E hereto, the April 15, 1999 testimony of Nagim Kormi; and
f) as Exhibit F hereto, the December 5, 1998 harassment incident report of Boston
Planned Parenthood clinic patient ”Vanessa.”
6. These documents were received and have been maintained in the ordinary course
of business for the Committee.
7. On October 28, 1999, the Senate requested an advisory opinion from the Supreme
Judicial Court on the Constitutionality of Senate No. 148.
8. On January 24, 2000, the Supreme Judicial Court returned its opinion to the
Senate stating that the language of Senate No. 148 was, in fact, Constitutional. The opinion was
published as Opinion of the Justices to the Senate, 430 Mass. 1205 (2000).
9. On February 29, 2000, the Senate engrossed Senate No. 148.
10. On July 26, 2000, the House of Representatives struck the text of Senate No. 148
and replaced it with the language contained in House No. 5401.
11. Because House No. 5401 was an amendment, and not a new bill, a public hearing
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3
on the new language was not required. In addition, the Criminal Justice Committee neither
solicited nor received further testimony concerning the amended language.
12. On July 28, 2000, after making a technical amendment to the language of House
No. 5401, the House of Representatives engrossed the bill.
13. On July 29, 2000, the Senate concurred with the House of Representatives’
amendments to the bill.
14. On July 29, 2000, the Senate and the House of Representatives enacted the bill.
15. On August 10, 2000, the Governor signed the bill. The bill was enacted as
Chapter 217 of the Acts of 2000. A true and correct copy of Chapter 217 of the Acts of 2000 is
attached as Exhibit G.
Signed under the pains and penalties of perjury this 28th day of January, 2008.
/s/ Richard A. Powell Richard A. Powell Chief of Staff Senator Cynthia S. Creem
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EXHIBIT A
CRAL JUSTICE COMMlTEETESTIMONY OF MAUREN PAUL, M.D., M.P.H.
PLAND P ARNTOOD LEAGUE OF MASACHSElTSSUPPORTING 8.148
BUFFER ZONE LEGISLATIONAPRl 15, 1999
My Dame is Dr. Maureen PauL. I am Medca" Director of the Planed Parenthood of Lee of
Massachusett and Associate Professor of Obstetrcs and Gyneclogy at the Universty of.
Massachusett Medca SchooL. I am here tody to spea in support of Senate Bil 148.
As an obstetrcian gyeclogi I provide a fu rage of reroductve heath ca serces to
women includig abrtons; I am proud of what I do beus acs to sae, legal aborton saves
women's lives, as our own history in the baclaeys of Amenca testes. I am open abut wht Ido beuse I am siply doing my job as a respnsible physician providig a constuona1y-protected heath cae servce.
Like many of my colleaes.at Planed Parnthood ~d acrss th countr; my outsken
commtment to women's heath makes me a taget of
anti-aborton intidation and"harent
I have ben sined out by nae on the Massachusett Pro-lie Action hotle and often have the
privacy of my home violated by anti-aborton maigs. Jus ths wee~ an anonymous letter wasent to all of my neighbor. referg to me as an "abortonist" and revea my exact addrss.1bree weeks af the brt3 murder of
Dr. Barett Slepianmy nae appeed on the Nurembeg
Files website - a veiled hit li agai reroductve heath ca provider - and I have rentlyreived an explicit death tht. It is in th cliate of
thts and intidation that I go to work
ever day only to be confonted by proteser atile cliiuc entrce who suound my ca, puttheir face to my widow, scr out my fi nae, ca me a murderer, and videota me. It is 'the sae intidation tht I se in the eyes of my patients who ar visibly shaken afer bein .
accsted by agive protes at the clic door.
. Thes act of hasment and intidation ocm- agai a backdrp of
unpreented violence
agai rerouctve heath ca prvider - a violence mared by 8IDS7 bombin, cbemcir
attcks~ and the bnita mm-ders of dedcated clic workers - a violence.tht ba claied the liv.e,
not of faceles ster, but of dea frends and colleaes in florida New Y ori and right her
in the Commonweath. In the:liate,evèn seemigly órdiar ges by. peple we see every~y at the cliicftel thteng, whether or not they are meat to be. För litte did Dr. John .
Britton and his voluntee esr: James Bartt know as Uley sat in a ca outsde a Clinc that aproteser they saw every d~y would fhis day wak up and in UlespIit secnd of a seeglyordin ges end thei
preous lives forever. Litte did Le An Nichols and Shanon
Lowney know when Uley smled up at a segly ordin man askig a semily ordinaqueson tht he would riddle their wa face with bullets. It is in the mids of tls terrori
. ambiguty tht my firs name on .1he lips of a proteser becomes UDwelcomed intiacy, lhat thdiction between a violent rhetoric and a violent action begi to blur, and lhat U10se 30
sends thtI and my colleagues Wat for the clinc g~e door to ope beme one of
the
longest 30 sends orour lives.
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Today I and the other supporters of Senate Bil 148 are askig you for somethg hume andvery simple. We are askig you for 25 feet of pece and protection. We are askig you to cayour vote for the right of dedicated physician and clinc st to
enter their worklaces free of
theats and harsment. We are askig' you to support the right of every woman to make and
ca out their reproductive choices without being accosted by those who know nothg of their
lives or situtions. We are askig you to vote YES to a bil which is an importt step in endigthe violent confict that suounds aborton in ths countr. Than you.
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EXHIBIT B
CRAL JUSTICE COMMETESTIMONY OF ALICE VERHOEVEN
PLANED P ARNTOOD LEAGUE OF MASSACHUSEITSSUPPORTIGS.148
BUFFER WNE LEGISLATIONAPRI 15, 1999
. My name is Alice Verhoeven. i am Vice-President and Clic Diror for Planed Parenthood!
Preterm- Heath Servces of Grter Boston. Planed Parnthood provides fi reprouctive beaùi cae
servces for al women. Our servces include bir contrl, gyeclogica qu, counelig, medca andsurgica aborton, bre and ceca 'cace scenig, stertion, and scrnig and trtment for
sexuy t:tted inecODS.
In Massachusett, reproductve heath ca facilties have ben the tagets of countles blockades,protes, and distance culminatig in the ~..c murder of
Le An NicholS and Shaon Lowny
on Decmbe 30, 1994 in a shooti whch left five other injur Since tht tie~ st and patientshave contiued to be subject to hasment and intidation by protesters who approach with 'extmely close proxity.
"5en patients aid st enter our
facility at i 055 Commonweath Avenue, they are confonted with
proteser attemptig to hand them literatue and engage.
them in converstion. Some of proteser
taget patients _ walg in front of them tbg literatu or grhic pictues in their face, and often
videotaing 'tem. Becus our prpert lie stops nght at the entrce to the facility, these patientsar hased and pured to the door of
the clic.
Often patients ar visitig the clic for the fi tie, are ui of dions and beme panckedwhe attempti to avoid the protesers. Qute a few of our patients spea litte or no Enlish and1hsitution is even more dicult for them. On
countless occions I have sen patients enter our lobby
with tened confed looks and often bur into tea as aret of
ths hament., .At the Planed Parnthood facilty on Commonweath Avenue. we have an underund gare and -
some patients opt to pa ther to avoid wag in thug the prteS. Even th~ they encounterprteser st~g les th a foot
frm thei-ca widows, someties stdig in the drvewy. For
sety reonS out gare door is kept close and only opened by a sety gud when a caaproaches. In the 30 senè: th taes, patients and their esrt a, subjeced to a bare ofharsment, usly verbal and someties physica. A proteser once pushed one of our clic ~rt
agai a ca watig at the gare. Luckily,
that tie, no one wa 'hur
I have with me the wrtten tesony of one .of our patients who could not be here today. As you Wi
red in her sttement,tl haent she wa subjected to
as she enter 'our Commonweath Avenue
facilty left herangi and fea-: anti aborton protester ruhed up to her ca, yelled at her, and tred
to biock her entrce to the clic. .
Approxiately i 00 patients have filed harent incident report about the proteser to ad~ thirñutions, anger, and fea at havig their entrce to U1e clinc impeed. One woman stted tht the
proteser's actionS sca her. "I thought they were going to hur me," :she sad. Patients tell of
how
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protesters stood "shoulder to shoulder",
verbally abusing them. They tell of their fea as protesters yell
and follow closely behid them right up to the door.
J worr about the potential for violence'thatis created when individuals are mercilessly harsed. OnnÙIerous occaions, 1 and members of my stháve had to caution the husbands, parents, and par"ersof patients agai a physica alterction with the protesters. It is try remarkable that there haven'tbeen more altercations and incidents of
physica violence. We ca't gutee that the bufer zone wi
prevent violence, but it will reduce the intense hasment now expeence by patients and st, whleprovidig ample opportty for the expression of dierence of opinon.
I am alsoconcemed for the safety of those who work.at our facilities. Our stba ben subjected tothe sae IiSment as our patients. The antiaborton violeIice tht physician and sthave beensubjected to thoughout the countr, and here in the Commonweath ba a profound effect on thosewho provide heath ca.
I wi submit to the Commttee the wrtten testony of one of our nures, whó, fea for her personalsaety chose not to appe before the commttee today. In her testony, she descrbes one day when
she was attemptig to enter the gare to go to work, a proteser stood between her ca and the swpecad machie, makg it impossi!?lt..or ~c:r to open the gare door. In addition, two protester movedbehid her ca so that she could not back up.: Whe sne.wa caught between protesters, they yelled ather, touchig her ca and movig very close to the ca widow. Needless to say, it wa a frghteniexpenence.
Another st member reported an incident as she approached the clinc, th protester stood acrossthe entrce with less than one foot between them. She wa forc to squeeze between them to gaientrce to the clinc. The bufer zone legislation will help oUr st access their place of employment
wìuiout the.bare ofharsrent they. now face.
The proposed bufer zone leglaion is not
about aborton, it is about improvi public saet - it is
about tonig down the intensty of emotion tht now exist outde reproduètve heath ca facilties.
On behal of the st and patients of the Planed Parnthoo Lee of
Massachusett, I ure you to
give Sente Bil i 48 a favorable rerL Th you for the opportty to sp on th ver impOrttissue.
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EXHIBIT C
CRIAL JUSTICE coMMETESTIMONY OF KAN CAPom
PLA.T£D PARNTHOOD LEAGUE OF MASSACHlSETISSUPPORTIG 5.148
BUFER ZONE LEGISLA nONAPRI 15, 1999
My name is Karn Cani. I am a nur practtioner and I sere as the clinc diector forPlaned Parnthoo in Worcster. At our Worcer facity, we provide fu gyeclogicaservce, includig aborton. We provide famy plang~ inertty servce, treaent of
sexuy trmitted inecons, mv tesg. We reived DPH fudig for women tó come for
refers and exam for mammogrphy servce. I se over 2100 gyeclogy patients each yeaat Planed Parnthood and overs the day clinc manement.
In my tesony tody in support of Senae Bil 148, I wat to convey to you the overlatmosphere in Wo.rcer, as it afec our nee fo~ leglaton such as the
bufer zone. Since we
opeed our doo~ m-W.orcer, weJiave ben subJecteQJ9 protes and tageted harent of
our st and patients. Our buidig ha be vadaiz rocks have been thown at our
widows, and our frnt door has been smashed in
When patients and st arve at our facilty, they
ar often subjected to verbal assaults from
proteser on the sidewa and in our drveway- Al patients ar subjec to harent,regares of the reaon tht they come
into the clic. Often, the veral harsment is
inamatory such as "murderr," "baby kier," and "you're going to hell" and one of om. physician ha been thtened with "Tm W?tchig you': and "'you won't be smg for long."
Ou facilty ba a drveway into our par lot, whch ha be the site of repeted problems. 'Wth prtesers. The protes wa slowly acss the drveway and, in some caes, std
blocki the drveway, yellg and often apprachi the drver and pasener. Ou gud is. often forc to ask a protes to move
out of the way of a vehcle severa ties before the
proteser cömplies. Th iets in the dagerus sitution of a ca obstctg trc beusethey cat pro into $e pag lot.. .In ile pa yea.
the Worcer Police have ben caled sever ties to remove proteser from
the.drveWY becaus they refu to
let a patient or employee enter. in one incident, a prteser
lut an employee's ca door with lus fi whle she wa attemptig to enter 1he parg lot. At
leat one accÍdent ha oc and I am conceed others ar inevitable.
It is in ths cliate of aggrve inumidation tactics ilat we operate our clinc day-to-dy and
sere the nees of our thous of pauents. W1le. the bURer zone will not eliminte the thts
we reive or the verbal asults aftbe proteser, it will allow
patients and st to enter om
facility Wi1hout ile considerble baer they now faCt We nee 1he buffer zone to help relieveile atmosphere oftenion, chaos, and fea.
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On behalf of the sta and patients in Worcester, i urge you to give Senate Bil i 48 a favorablereport. Than you for your tie and consideration.
".; .
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EXHIBIT D
CR.AL JUSTICE COMMETESTIMONY OF FILOMENA KATIA NATAL
"PLANNED PARNTHOOD LEAGUE OF MASSACHUSETTSSUPPORTING S. 148
BUFRWNETHDAY, APRI is, 1999
. My nae is Filomena Katia Natae. I have ben a nure in the Boston Planed Parenthoo clicsince Janua, 1998.1 am wrtig in support of Senate Bil J48, beuse 1 believe it would helpto end the curent workplace hasment whch st membe such as myself endure reguarly.1b hasment not only makes it emotionaly dicult for us to peomi om jobs to the be ofour abilties, but alo frequently makes it pbysicaly dicut even to enter the buidig.
On Febru 20, 1999, as I wa on my way to work, severa protesers blocked my entrce intothe parkig gare at thecIic. One proteser stoqd between my ca ~d the cad reader so that I
could not swpe my pass to open the gare door. As I opened my widow to ask the escort tohelp me, the protesers moved veiy close to my ca and began screag at me and makg, "',comments abut my nationaty~" The proteser then prevented me frm backig up out of tledrveway by contiuously cirlig my ca and stdig behid it. By the tIe I made it into thebuidig, I 'W ver upset. I wa fuous that protesers semed to be able to freely and openly
: prevent me from gettg to work. Followig their deliberate peonal comments and loud verbal
haent, it took me severa miutes. to regai my composue so that i could perform mymedca duties compassionately and effectivdy.
Some of the harent bemes commonplace afer a few weeks of emploYment. Employees
forget, for example, th other peple would not consider looki aroUnd caefuiy for anytgsuicious when wa out the front door of their offce buidig. They would not heste toes outoors on a wa sprig day and sit on the cur eatig'lunch- They would not pausebefore invitlg someone to meet them at their offce at the end of the day. . Yet employee ofrerouctve heath OrgaitiQDS do al of thes. tlgs; and more as a matter of habit. AlthougI do not consiously th about ths on a day bas, I know that in the long ter it is bothmentay and emotionay drg for me.
Bùfer zone legislation would sed the mese tht the worklace haent I have face is notaccptable. On bcf of reuctive heath clinc employees thouglo~ the stte, I ask you togive S.B. 148 a favorable rert . , '
...
Case 1:08-cv-10066-JLT Document 66-5 Filed 05/09/2008 Page 2 of 2
000198
EXHIBIT E
CRAL JUSTICE COMMETEST0NY OFNAGIN KORM
PLA1TND PARNTOOD LEAGUE OF MASSACHSETTSUPPORTIG S.148
BUFR roNE LEGISLATIONTHUDAY, APRI 15,1999
Hi. My nae is Nag Kormi I am curnùya volunteer escort at PPLM, and have benescortg at women's heath clics sice I began high sçhool.
I'm al a stng suport of civi libertes and fr sp In my expence as an escort I
have see numerous incidents tht have gone fa beyond fr sph, crssÍI the lie to
haent and intidaOIL
r d lie to tell you .abUt a few of these incidents:
One momig a woma drve up to the frnt of the clic, twed her had lights on, andworked her waY1hugh the crwd to get inde. Her th yolR chidrn were wati in the
ca for their môther to retu Ciealy she wa not there for an abrton, and as it tued out, shehad come in to pick up her suly of
bir contrl pil. As soon as she wa inde the buidig, a
group of four prteser suunded her ca and sted scrming at hercbidr The woman raback òutde and told them to get away frm her chidr ånd her ca. Sti the proteer did not
relent. As son as she went back inde, they contiued to badger her youn chidr
Honig doe't begi to explai 1hs sitution. The chdrn wer sced ha locedthemselves in the ca and tred to drwn out the sound of the proteser by turning on the rao.
ÜIe of them wa cr and by the tie the woma ha gotten her bir contrl pil and .reed to her ca, she wa in a nnous rae.
On another momi, a ca puled up to the sidewa by the clic, and wa imedly enedby a lae grup of prteer. Inde wa a woman in her mid-tWenties and her eldely' .
grdfater. The proteser wouldn't let them out ófthe ca and yelled at the drver to dñvë
away. The woman and her gidfather wer tr inde the ca for seer mi~ unti the
divc: got out and sted yell at the prteer. Then two esrt we able to mae th~ wato the woman's side as she ra cr into the clic. Her gndfër, who waed'Wth a ca,
wa. unble toi: He neeed my asce and wa forc to slowly mae hi way thug th
an crwd. In the. amount of tie it took hi to wa from the ca to theclie entrce, hewasboved and alost fell dòwn twce. He wa alQ forc to endur vaous ints about his
race and rear about how his handicap wa a
punshment frm "God
Patents for al sece and their fames ar reguarly subjeced to ths 1åd of
treatment. Cli.
. volwitee and esrt ar also contiwiy ~ One .example of
th hasment hapèto me Dot too long ago. I wa stdig outde th gae entIce wh patients idetithemlves to a gu and wat unti the gare door is opeed and. thy ar let inde. One òf tliuroteser saw a
ca comi, and ri to interpt it. She sted bagi on theca-wiowsmid
Case 1:08-cv-10066-JLT Document 66-6 Filed 05/09/2008 Page 2 of 3
000199
screag at the pasengers inide. As the ca moved forwd to get closer to the gare door,she tred to block it by stepping in its way. The ca kept movig and she stepped aside andpushed me into ii I found myself sprawled acoss the widshield of
the ca, whch wa stmovig. Afer I got up, the proteser tmed to me and pointed to anothr prote across thestt .who wa holdig a video caera Screag, she inormed me tht I ba ben videotaped.
and tht i should "wtch (my) back" becuse, as she put it, "we know who you are:'
Simar thts have been made to patients, with protesers claig to be able to identi themby trckig their license plat num~ or tag pictes of them.
I am a fu believer in a persn's right to expre hiel£ I do not believe, however, physica
inúmdation and verbal abus qua as fr speeh. To inúmda women into nmg away,scad and crg, from women's heath clics is to abli any "choice" they may have. To
ha chidren is not 'counelig.' To assault clic escrt is not a demonson offrsph. And to theaten anyone who may be comig in for any heath serce is not a protecedcivi libe - it's cral.
Without the protecon of the bufer zone, a person enter a clic ca be made a taget of
blatt harsment and intidation based on her beIiefs. I urge you to give S. 148 a favorable
rert so that we may al atmpt to accommodate our dierences in an atmosphere wher
pena saety is not theaened.
Case 1:08-cv-10066-JLT Document 66-6 Filed 05/09/2008 Page 3 of 3
000200
EXHIBIT F
HASSMENT INCIDENT REPORTCOMPLETED BY VANSA B. ON DECEMBER 5, 1998
BOSTON PLAND PARNTOOD CL~C
SUBMIIIED IN SUPPORT OF SENATE BILL 148
Describing ber exprience arving a1 the Boston Planed Parenthood clic on Decmber 5,1998, the patient reported:
. A grup ofprotestersapproacbed the car'as sbe wa being droppe off.
. The proteser blocked the doorwy of the clic.
. One proteser put her hands on thepatients shoulder.
. . The protesers yelled at her.
The,patient descrbed her rectons:. 'Scaed I"One peon put their hands on my right sHoulder. I told tht person stght out
'Fir of al, don't put your hands on me.' Bad enough I wa scaed comig her,afd I might get shot."
. Ne~o~ ,"One pen wa cag a fake baby doll and wa yellg, 'It's alive. You se whyou're doin!' Another person had a taorder and wa playi a tape with a chid. .crg, 'Monmy, Mommy.' I got re nerous bec~e they c:dn't know why I :wthere."
. Intidated"They rey nee to do sometg about the protester, be~ they sar peple,intidate them They show violent atttudes whch aren't goo for a lot of
peple." .
. Angr"They (the protesers) made me sca but they ar not rug me away (frm the
clic) because i have rights too."
Originalsigred harassment report attached
Case 1:08-cv-10066-JLT Document 66-7 Filed 05/09/2008 Page 2 of 3
000201
H:imi:i: Incid~i T CSÙLOOY
N~eAddrcs~
Yi60AI\ ç
5phone
D:n.e rod ÙLe of incident l7j'5IOf 0 V' e¡ ~ Å1
Plw.ed p~e:thood ruff ~ 'Ounue (cicle one)Did anyone Q~t "to block your entrce to the front dor of thO cl' thO b ck' dr .
W1 did th d' f' e c m: e a "tew?t cy o. (or exple. did 21yone stand in front of you. stand right nex £ 11
up to the d:xr. :zppro¡¡ch your or 2S you were beg dro pe off, bloc acc ùito you,. 0 ow you ~Mth, luck dm,""y er,) ~ '-. . P to "'.:umy =d reder in i
ÒìO¡iee of a-~J ~ ?Ú:ic:J¿\ ~~a;~- ~ ~~~?d-\~'~ Son m'j (i 'I h -I ':ov..Id.e. :c 1'0 t cl 'WOLt- P' í50'Î f1'3 -ro. i ~ l1!- 0 vl. 1"11$+ Ò+ Q I ( do'-! -¡"t-~ ~V- h~ i; on me. BAd~noLl~ h :C v-0''' ~J ~"y i tiß i UL¡2, o.F rOl l cJ f-O-f r - rY:'7:o¡-e r Sh,y- 30 ¡n ý bes'¡ fi ..Ó Wd Ft/ . 'j k +0 ;) -e+ ~t:.1 rî b. b.flr::v ~- h ~ .~~th~~~¡ot.~;t Ifç.,:a;~~~'::rl~:~b$,j¿¡~fi'ct~ïb",~ ?#t~ ,..
""live' · ~ :f iü ~'òOJ'1' A-1ldf ped:x:m . 7-G! +ýf!;:-!0k OYof wd.S p,hil"J o.!f i.l. 0. c"h,0. nfi n/j mcur: m ~ (y)'.'j 1:. OJ 0 .¡ reAl n e'( i)Jò v.s~ ~. ulD Wn'1 r 0tts -.ÃÚ. .Dõd myoDcsou you in anpny? r '" h.f s h dl/~If so ..e? i-tS Dil (Y 'f i i
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION ELEANOR McCULLEN, JEAN ) BLACKBURN ZARRELLA, ) GREGORY A. SMITH, ERIC CADIN, ) CYRIL SHEA, DONALD GOLDEN, ) NANCY CLARK, MARK BASHOUR ) and NOREEN BEEBE, ) Civil Action 1:08-CV-10066-JLT ) Plaintiffs, ) ) v. ) ) MARTHA COAKLEY, Attorney ) General for the COMMONWEALTH OF ) MASSACHUSETTS, DANIEL F. ) CONLEY, District Attorney for Suffolk ) County, MARK G. MASTROIANNI, ) District Attorney for Hampden County, and ) JOSEPH D. EARLY, District Attorney ) for Worcester County, ) ) Defendants ) ______________________________________________________________________________
PARTIAL STIPULATION OF DISMISSAL COVERING CLAIMS BY DONALD GOLDEN AND NOREEN BEEBE
All parties stipulate pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) to the dismissal with
prejudice of all claims by plaintiffs Donald Golden and Noreen Beebe (see First Amended
Complaint, ¶¶ 12, 15, and 50).
The claims by all other plaintiffs are not affected by this stipulation of dismissal.
Case 1:08-cv-10066-JLT Document 127 Filed 06/28/11 Page 1 of 2
000205
For the Plaintiffs, /s/ Michael J. DePrimoMark L. Rienzi
Catholic University of America, Columbus Law School 3600 John McCormack Road, NE Washington, DC 20064 202-319-4970 [email protected] Michael J. DePrimo, CT Bar # 402211 Admitted pro hac vice Attorney at Law 778 Choate Avenue Hamden, Connecticut 06518 (203) 281-1496 Email: [email protected]
For the Defendants, MARTHA COAKLEY ATTORNEY GENERAL OF MASSACHUSETTS /s/ Kenneth W. SalingerKenneth W. Salinger (BBO # 556967)
.
Assistant Attorney General Government Bureau Gabrielle Viator (BBO # 667993) Assistant Attorney General Civil Rights Division One Ashburton Place Boston, MA 02108 [email protected] – 617.963.2075 [email protected] – 617.963.2567
Philip D. Moran, MA Bar # 353920 Philip D. Moran P.C. 265 Essex Street, Suite 202 Salem, Massachusetts 01970 (978) 745-6085 Email: [email protected] June 28, 2011
CERTIFICATE OF SERVICE
I hereby certify that this document was filed through the Electronic Case Filing (ECF) system and
thus copies will be sent electronically to the registered participants as identified on the Notice of
Electronic Filing (NEF); paper copies will be sent to those indicated on the NEF as non registered
participants on or before June 28, 2011.
/s/ Michael J. DePrimo
Michael J. DePrimo, Esq. Counsel for Plaintiffs
Case 1:08-cv-10066-JLT Document 127 Filed 06/28/11 Page 2 of 2
000206
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA,
GREGORY A. SMITH, ERIC CADIN, CYRIL SHEA,
NANCY CLARK, and MARK BASHOUR
Plaintiffs,
v.
MARTHA COAKLEY, as Attorney General for the
COMMONWEALTH OF MASSACHUSETTS; DANIEL F.
CONLEY, as District Attorney for Suffolk County; MARK G.
MASTROIANNI, as District Attorney for Hampden County,
and JOSEPH D. EARLY, JR., as District Attorney for
Worcester County,
Defendants.
No. 1:08-cv-10066-JLT
JOINT STIPULATION AS TO THE CONTENT OF THE TRIAL RECORD
FOR THE BENCH TRIAL OF PLAINTIFFS’ AS-APPLIED CHALLENGE
Plaintiffs’ as-applied challenge to the constitutionality of Mass. G.L. c. 266, § 120E1/2,
as revised effective November 13, 2007 (the “Act”), will be tried in a bench trial on August 24,
2011, based on the record evidence described below. See Order dated April 12, 2011; Electronic
Notice of Rescheduling dated April 21, 2011.
The parties hereby stipulate to the contents of the trial record for purposes of the bench
trial of plaintiffs’ as-applied challenge, as follows and subject to the conditions set forth below:
1. The parties stipulate that the deposition transcripts, declarations, and other
evidentiary materials listed below, including any and all exhibits thereto, shall constitute the trial
record for the purpose of the bench trial of plaintiffs’ claims that the Act is unconstitutional as
applied to areas adjacent to three reproductive health care facilities referenced in plaintiffs’
complaint (the Planned Parenthood League of Massachusetts (“PPLM”) facility located at 1055
Commonwealth Avenue, Boston, Massachusetts; the PPLM facility located at 470 Pleasant
Street, Worcester, Massachusetts; and the PPLM facility located at 3550 Main Street,
Case 1:08-cv-10066-JLT Document 128 Filed 08/09/11 Page 1 of 3
000207
- 2 -
Springfield, Massachusetts), subject to the condition that the parties reserve and do not waive the
right to argue that any portion of this stipulated trial record should be given no weight for the
purpose of deciding plaintiffs’ as-applied challenge, on any grounds including relevance.
2. The following deposition transcripts, declarations, and other evidentiary
materials, and the exhibits attached thereto, shall constitute the agreed-upon trial record:
Stipulation Regarding Buffer Zone Measurements, and exhibits thereto,
Deposition of Eleanor McCullen, and exhibits 1-8 thereto,
Deposition of Eric Cadin,
Deposition of Jean Blackburn Zarella, and exhibits 9-12 thereto,
Deposition of Gregory Smith,
Deposition of Cyril Shea, and exhibits 1-10 thereto,
Deposition of Nancy Clark, and exhibits 1-7 thereto,
Deposition of Mark Bashour, and exhibits 8-9 thereto,
Deposition of Michael Baniukiewicz, and exhibits 1-4 thereto,
Deposition of Kristen Metzger, and exhibits 1-17 thereto,
Declaration of Eleanor McCullen, and exhibits thereto,
Declaration of Eric Cadin,
Declaration of Jean Blackburn Zarella, and exhibits thereto,
Declaration of Gregory Smith,
Declaration of Cyril Shea, and exhibits thereto,
Declaration of Nancy Clark, and exhibits thereto,
Declaration of Mark Bashour, and exhibits thereto.
Case 1:08-cv-10066-JLT Document 128 Filed 08/09/11 Page 2 of 3
Case 1:08-cv-10066-JLT Document 139 Filed 08/09/11 Page 1 of 8
000210
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000211
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000212
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000213
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000214
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000215
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Case 1:08-cv-10066-JLT Document 139 Filed 08/09/11 Page 8 of 8
000217
—
_
—.—
ao,
P
- Pla
nned
Pa
ron
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od
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2008
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rs,c,
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Cas
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of
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Cas
e 1:
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ned
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ntho
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ase
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ment 65-6
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iact
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f 4
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D
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iled
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AG
10
1
Cas
e 1:
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ocum
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iled
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f 2
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0002
23
Mon
th
Dur
ing
this
firs
t am
azin
g m
onth
of l
ife th
e ba
by
grow
s to
10,
000
times
his
siz
e at
con
cept
ion.
He
is to
tally
dep
ende
nt u
pon
his
mot
her.
Bet
wee
n m
othe
r an
d ch
ild li
es th
e vi
tal o
rgan
cal
led
the
plac
enta
. Her
e ve
ssel
s fr
om m
othe
r an
d ba
by
inte
rtw
ine
with
out J
oini
ng, h
ighl
ight
ing
this
new
ly
form
ed r
elat
ions
hip
- m
utua
l, no
uris
hing
and
de
eply
con
nect
ed. B
y th
e th
ird w
eek
the
baby
's
tiny
hear
t beg
ins
to b
eat.
The
dev
elop
ing
baby
is n
ow c
alle
d a
"fet
us",
a
Latin
wor
d m
eani
ng "
lithe
one
". S
he is
mak
ing
rapi
d pr
ogre
ss d
evel
opin
g al
l her
ext
erna
l and
in
tern
al o
rgan
s, a
nd b
y 8
wee
ks a
ll he
r bo
dy
syst
ems
are
pres
ent.
Bra
in w
aves
can
als
o no
w
be r
ecor
ded
Dur
ing
this
sec
ond
mon
th o
f life
ba
by te
eth
begi
n to
form
, and
fing
ers
and
toes
ar
e de
velo
ping
. Her
ear
s, n
ose,
lips
and
tong
ue
can
now
be
clea
rly s
een,
and
her
ske
leto
n ch
ange
s fr
om c
artil
age
to b
one.
The
cen
tral
ne
rvou
s sy
stem
is fu
nctio
ning
and
her
fort
y m
uscl
e se
ts a
re p
ract
icin
g th
eir
first
exe
rcis
es.
At t
he m
omen
t the
nuc
lei o
f the
fath
er's
spe
rm
and
mot
her's
egg
uni
te a
new
and
unr
epea
tabl
e hu
man
bei
ng c
omes
into
the
wor
ld, c
ompl
ete
with
his
or
her
own
uniq
ue s
et o
f DN
A. T
he n
ew
little
per
son'
s se
x is
als
o de
term
ined
from
the
begi
nnin
g. T
his
tiny
hum
an b
egin
s he
r lif
e as
a
sing
le c
ell g
lidin
g do
wn
the
fallo
pian
tube
. In
iust
a
few
day
s sh
e w
ill s
nugg
le in
to th
e so
ft lin
ing
of
her
mot
her's
wom
b w
here
she
will
be
nurt
ured
fo
r ab
out n
ine
mon
ths.
Afte
r bi
rth
she
will
pla
y a
uniq
ue r
ole
with
in h
er o
wn
fam
ily a
nd c
omm
unity
—
a r
ole
only
she
can
fulfi
ll. A
ll sh
e ne
eds
is ti
me,
no
uris
hmen
t and
, mos
t of a
ll, lo
ve. Cas
e 1:
08-c
v-10
066-
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D
ocum
ent 1
39-4
F
iled
08/0
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P
age
2 of
3
0002
24
Mon
th
Mon
th
.1- M
onth
tw
o, ,,,c
;h,5
!,
"I g
rabb
ed m
g ha
nd!"
T
he b
aby
can
now
squ
int s
wal
low
and
mov
e hi
s to
ngue
. He
slee
ps a
nd a
wak
ens.
Fin
gern
ails
and
to
enai
ls fo
rm a
nd h
e no
w h
as h
is o
wn
uniq
ue s
et
of fi
nger
prin
ts. S
ensi
tive
to to
uch,
he
will
tigh
tly
gras
p an
obj
ect p
lace
d In
the
palm
of h
is h
and
He
brea
thes
am
niot
ic fl
uid
to h
elp
deve
lop
and
stre
ngth
en th
e re
spira
tory
sys
tem
, but
he
gets
the
oxyg
en h
e ne
eds
thro
ugh
the
umbi
lical
cor
d,
Thi
s m
onth
mar
ks th
e ha
lf-w
ay p
oint
to b
irth,
and
th
e ba
by is
ver
y ac
tive.
Sle
ep h
abits
dev
elop
an
d hi
s m
othe
r ca
n fe
el h
im m
ove
and
stre
tch,
pa
rtic
ular
ly w
hen
she
is r
estin
g. H
e is
big
and
st
rong
eno
ugh
to k
ick
hard
aga
inst
the
outs
ide
uter
ine
wal
l and
den
t it.
Up
to n
ow, a
lthou
gh h
e sw
am w
ith e
ase
in h
is w
ater
y w
orld
, he
was
too
smal
l for
her
to d
etec
t bec
ause
the
insi
de w
all o
f th
e ut
erus
has
littl
e fe
elin
g. B
abie
s bo
rn a
t thi
s ag
e ha
ve s
urvi
ved.
The
bab
y's
brai
n ha
s be
gun
mat
urin
g -
a pr
oces
s th
at w
ill c
ontin
ue u
ntil
she
is a
bout
14
year
s ol
d. H
er e
yelid
s ar
e no
w s
eale
d sh
ut a
nd
will
re-
open
at 7
mon
ths.
Her
tast
e bu
ds a
re n
ow
wor
king
. Nut
rient
s co
nsum
ed b
y he
r m
othe
r ar
e pa
ssed
on
to h
er w
ithin
an
hour
or
two.
Thr
ee
hund
red
quar
ts o
f flu
id a
day
are
sen
t to
the
baby
via
the
umbi
lical
cor
d. F
ine
hair
begi
ns to
gr
ow o
n he
ad, e
yebr
ows
and
eyel
ashe
s. F
acia
l ex
pres
sion
s si
mila
r to
the
baby
's p
aren
ts c
an
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92, A
WC
has
pro
vide
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form
atio
n an
d su
ppor
t for
wom
en a
nd c
oupl
es fa
cing
un
plan
ned
preg
nanc
ies.
"You
nev
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dged
me
or to
ld m
e w
hat
I sho
uld
do. Y
ou g
ave
me
a ch
ance
to
clea
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and
follo
w m
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n he
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cilia
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10
"I th
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t the
re w
as n
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lp fo
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situ
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cam
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A W
oman
's C
once
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la, 2
010
"AW
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as b
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so k
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and
help
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o m
e an
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m s
o gr
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r wha
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ha
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one.
" Ke
ily, 2
010
"I c
an't
than
k yo
u en
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for y
our
coun
selin
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d ad
vice
and
just
en
cour
agem
ent.
You
've
real
ly c
hang
ed
my
life.
" B
lisa,
201
0
To
find
out
more
about
our
serv
ices
, w
e in
vit
e y
ou
to
vis
it o
ur
web
site
at
ww
w.a
wo
man
sco
ncern
.orq
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e 1:
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La
b q
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pre
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sti
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ltra
sou
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ser
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s b
y m
edic
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PS
Ed
uca
tio
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n p
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etal
de
ve
lop
Me
nt,
pa
ren
tin
g,
an
d
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FS I
nfo
rmati
on
on
ab
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ris
ks
an
d p
roc+
du
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Pa
ren
tin
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up
po
rt p
rog
ram
wh
ich
incl
ud
es e
du
cati
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an
d
mat
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l ass
ista
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Co
mm
un
ity r
eso
urc
e r
efe
rrals
• S
ex
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teg
rity
in
form
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co
un
selin
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PS
f?; P
os
t-a
bo
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elin
g
refe
rral
s
MA
KE
AN
IN
F.,
.111
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CH
OIC
E
c.CE
ST
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S
SE
RV
ICE
S O
FF
ER
ED
BY
AW
C
Yo
u w
ant
to k
now
:
Am
I r
eall
y p
reg
na
nt?
Wh
o w
ill
sup
po
rt m
e?
Wh
at
ab
ou
t m
y p
lan
s?
Wh
at
are
my o
pti
on
s?
The
dec
isio
n yo
u ar
e ab
out
to m
ake
dese
rves
car
eful
con
side
rati
on a
nd
unde
rsta
ndin
g of
all
optio
ns a
vaila
ble
to y
ou. W
e re
cogn
ize
that
ther
e ar
e no
ea
sy s
olut
ions
, and
no
one
answ
er th
at
is ri
ght f
or e
very
one.
Cal
l, co
me
in, a
nd
toge
ther
let's
exp
lore
you
r situ
atio
n.
All
of
our
serv
ices
are
pro
vide
d at
no
cost
and
are
com
plet
ely
conf
iden
tial.
DID
YO
U K
NO
W...
PS T
here
are
'res
ourc
es
wom
en?
to h
elp
preg
nant
App
roxi
mat
ely
30%
of
all p
regn
anci
es
end
in m
isca
rria
ge?
Tho
usan
ds o
f co
uple
s ar
e w
aiti
ng t
o
adop
t an
infa
nt?
In a
stu
dy d
one
in 2
006,
an
over
whe
lmin
g m
ajor
ity (8
2%)
of w
omen
regr
ette
d th
eir
abor
tions
? .
(htt
p:/
/ww
w.l
ifen
ews.
com
/nat
25
79
.htm
l)
178 I OOUOVIDDIAI
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McCullen001g5
Case 1:08-cv-10066-JLT Document 139-6 Filed 08/09/11 Page 2 of 3
000228
0 Mary, - bright dawn of the new world, Mother of the living, to you do we entrust the cause of life: Look down, 0 Mother, upon the vast numbers of babies not allowed to be born, of the poor whose lives are made difficult, of men and women who are victims of brutal violence, of the elderly and the sick killed. by indifference or out of misguided mercy. Giant that all who believe in your Son may proclaim the Gospel of life with honesty and love to the people of our time. Obtain for them the grace to accept that Gospel as a gift ever new, the joy of celebrating it with gratitude throughout their lives and the courage to bear witness to it resolutely, in order to build, together with all people of good will, the civilization of truth and love, to the praise and glory of God, the Creator and lover of life.
- Trangdfarn Vitae
#4237
124 ...,-‘‘,3 7
McCu Ilen001 86
Case 1:08-cv-10066-JLT Document 139-6 Filed 08/09/11 Page 3 of 3
000229
t cgietlei0V
617-734-1502
www.preciousbloodofjesus.net
McCullen00188
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McCullen001 89
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•
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DIARY OF AN UNBORN CHILD
OCTOBER 5— Today my life began. My parents do not know it yet, I am as small as a seed of a.n apple, but it is I already. And am to be a girl. shall hove blond hair and blue eyes. Just about everything is settled though, even the fact that I shall love flowers.
OCTOBER 19.— Some say that I am not a real person yet, that only my mother exists. But I am, a real person, fust as a small crumb of bread is yet truly bread. My mother is. And
OCTOBER 23 — My mouth is just beginning to open now. Just think, in a year or sc. sha ll be laughing and kiter talking. I know what my first word will be: MAMA.
OCTO3ER\25— My heart began to beat today all by itself, From now on it shall geatly beat for the rest of my life without ever stopping io rest! And after Many years tire. lt will stop, and then I shall die.
NOVEMBER 2 — i am growing a bit every - day. My arms and legs are beginning te take shape. But hove to wait a long time yet before- those little legs will raise me to my mother's arms, before these little arms will be able to gather flowers and embrace my father.
NOVEMBER / 2— Tiny fingers are begio.ning to fatm oi ly ,iar ,ds, Funny now sEnctti they art:d be obie to stroke my mother's hair with them.
NOVEMBER 20 — ft wasn't until today that the doctor told mom at am living here under her heart. Oh, how happy she must be! Are you happy, mom?
NOVEMBER 25— My morn and dad are probably thinking about a name far me. Bt.J - they don't even knaw that I am a little girL want to be called Kathy. I am aetting so big already.
DECEMBER 10— My hair is growing. it is smooth and bright and. shiny. I wonder what
kind of hair mom has.
DECEMBER 13-1am just about able to see. It is dark around me. When mom brings rne
into the worid it will be full of sunshine aad flowers. But what I want rno,-e than anything is to see my mom. How do you look, mom?
DECEMBER 24— I wonder if mom hears the whispering of my heart? Some_ children come into the world a little sick. But my heart is strong and healthy. it beats so evenly: tup-tup,
tua-tup. You'll have c healthy little daughter, mom;
DECEMBER 28— Today my mother_ killed me.
McCullen00196
Case 1:08-cv-10066-JLT Document 139-12 Filed 08/09/11 Page 2 of 3
000234
SIGNIFICANT EVENTS IN A NEW LIFE
The period which most abortionists describe as most desirable for performing an abortion is approximately eight
weeks after conception. This is a period of almost unimaginable development.
The dates reported here are approximate dates when specific development or functions begin. The dates shown have all been documented and reported in medical journals. Slight variations may occur. All of this data is limited by the sensitivity of the instruments and human limitations involved in observations. future research may show that these dates are
relatively late compared to observations with better or more sensitive methods. We can only conclude that life and its processes are evident, to any observer who is intellectually honest, at fertilization.
Chronology of the Human Mother
Date of lost menstrual period.
•
2 weeks, ovulation—conception—fertilization.
•
5-9 days, implantation in uterus of mother.
•
14 days (approximately), the first menstrual period is missed. The mother is probably
wondering if she is pregnant.
28 days after conception, earliest tests far pregnancy (testing not fully reliable).
Six weeks after conception, testing for preg-nancy relatively reliable. Mother has physi-cal signs of pregnancy and is wondering if she is going to have second missed period or is "truly" pregnant.
•
•
Eight weeks after conception, reported by
some anti-life proponents as only a glob of tissue. There are those who claim the mo-ther's right over her body gives the right of obortion.
Chronology of the New Human Life
1. Immediately upon fertilization, cellular development begins. Before implantation the sex of the new life can be determined.
2. At implantation, the new life i5 composed of hundreds of cells and has developed a protective hormone to prevent the mother's body from rejecting it as a foreign tissue.
3. At 17 days, the new life has developed its own blood cells; the placenta is a part of the new life and not of the mother.
4. At 18 days, occasional pulsations of a muscle—this will be the heart.
5. At 19 days, the eyes start to develop.
6. At 20 days, the foundation of the entire nervous system has been laid down.
7. At 24 days, the heart has regular beats or pulsations. (This is a legal sign of life.)
8. At 28 days, 40 pairs of muscles ore developed along the trunk of the new life ; arms and legs forming.
9. At 30 days, regular blood flow within the vascular system; the ears and nasal development have begun.
10. At AO days, the heart energy output is reported to oe almost 20% of an adult.
71. At 42 days, skeleton complete and the reflexes are present.
12. At 43 days, electrical brain wave patterns can be recorded. This is usually ample evidence that "thinking" is taking place in the brain. The new life may be thought of as a thinking person.
13. At 49 days, the appearance of a miniature doll with complete fingers, toes and ears.
14. NAME CHANGED FROM EMBRYO TO FETUS, At 56 days all organs functioning —stomach, liver, kidney, brain—all systems intact. Lines in palms. All future development of new life is simply that of refine-ment and increase in size until maturity at approximately age 23 years. This is approximately two months before "quickening" yet there is a new life with all of its parts needing only nourishment, The mother will usually not feel the child's movements until four months after conception.
• A fetus is 100% human and suffers excruciating agony in an abortion.
• Scientifically speaking, life begins at conception and is continuous then on until death.
• Every genetic trait is already determined at conception including the color of skin, hair, eyes, etc.
ABORTIONISTS PROFIT OFF THE UNINFORMED
Abortionists don't give patients this information. If they did, most women would not have an abortion. In gross violation of basic women's rights, abortionists are tricking women into killing their babies. Women have a right to know this important information.
18 weeks. Abortions are petfonned regularly on babies this age.
Abortions are legal through all nine months of pregnancy even for non-medical reasons.
Zarella00087
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000253
ABORTION ALTERNATIVES If you ever need help, take advantage of these free services also found in the yellow pages under abortion alternatives, they offer
• Free pregnancy tests
• Financial aid
• Free housings
• Free baby clothes, goods etc. *Not available at all services
•
CALL THESE FRIENDLY AND CONFIDENTIAL SERVICES ANYTIME
1 (800) 550-4900 Birthright 1 (800) 395-4357 Care Net 1 (800) 662-2678 Several
Sources Foundation 1 (800) 238-4269 Bethany
Christian Services
or go to www.optionline.org
GOOD NEWS If you have had an abortion. Jesus will forgive you if you ask Him. Besides, you are only partly to blame because 1. You didn't know, and 2. The doctor wasn't upfront with you
WOMEN WHO HAD ABORTIONS
It may take a lifetime for a women to learn how to cope with the realization that she killed her very own baby. This psychological condition is now known as "Post- Abortion Trauma". There are support groups available for them. The most well known is Project Rachel at 617-78-8300.
MORE WOMEN DIE IN LEGAL ABORTIONS
Before abortion was legalized in 1973 only 39 women died from illegal abortions. Today, Oyer 450 women die a year from legat abortions! Abortions can't be made safe. Some complications include: Perforated uterus, infection, torn cervix, blood clots, hemorrhaging, infertility, and even death.
Flyer Composed by Defenders of Women
Zarella00088
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II
,~ J
I
III1
I
Zarella00089
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Zarella00090
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Zarella00093
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MOTIlER OF TIlE UNBORN
Miss Tidwell, an American artist, was inspired to paint this beautiful depic-tion of our Blessed Mother grieving over the millions of aborted babies.Normally, a picture like trus would take her months to finish. She com-pleted this in two hours.
The stars round Mary's head represent the crown of the Woman of theApocalypse (12.1): "A woman adorned with the sun, standing on themoon, and with the twelve stars on her head for a crown." The large staris the "Star of Bethlehem". The rose colored ball in the lower left corneris the earth in turmoil. The glow of her most Immaculate Heart is an evi-dent sign of tremendous love for all her children, especially the most help-less of all.
The incessant weeping over this horrendous evil has blackened her lovelyeyes. The baby's Guardian Angel seems to be saddened over the death ofhis charge and grateful for the Blessed Mother's care and concern.
The baby bears the live wounds of our Precious Savior. Note, both babyand Angel are weeping and the baby's hands are clasped in prayer.
The reason the Blessed Mother's hand and fingernails are dirty is becauseshe has to scoop and dig out these precious souls from trash bins, garbagedumps, and as in Wichita, Kansas, from a pile ready to be burned withdead animals at their dog pound.
MOTHER OF ALL THE IlVlNG PRAY FOR US
Rosary Novena for Life106 Iakeiaum DriveSlidell, IA 70458(985)781-15)15
Nihil Obstat: Rev. Stanley P.W. K10resCensor
Imprimatur: Most Rev:Francis B. SchulteArchbishop of New Orleans
October 28, 1992
Zarella00094
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Zarella00095
Case 1:08-cv-10066-JLT Document 141-5 Filed 08/09/11 Page 2 of 3
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You Are Always Welcomein The Catholic Church
• Begin an adventure with God that will last a lifetime.
• We invite you to take another look at the CatholicChurch.
Visit CatholicsComeHomeBoston.org to learn more.
Zarella00096
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Case 1:08-cv-10066-JLT
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Wa
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Pte
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Utt
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Are
you f
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righie
ned
?
... overw
helm
ed?
•
...
desp
era
te?
Ho
w a
re y
ou
go
ing
to
tel
l y
ou
r
fam
ily?
Wh
at
are
you g
oin
g t
o d
o?
Ou
r cr
isis
pre
gnancy
cen
ter
is
staff
ed b
y
experi
enced
lay c
ounse
lors
w
ho c
are
about
you a
nd
want
to h
elp
.
We
know
that
you a
re f
acin
g
poss
ibly
th
e g
reate
st p
ers
on
al
cris
is o
f your
life
.
Yo
u d
o n
ot
ha
ve
to
fa
ce i
t a
lon
e.
"Ue C
het
Setu
ecea
ate
9te
e a
we
eare
tjed
eare
at
• F
ree P
regnancy T
est
s
Our
hG
C p
regnancy t
est
s al
low
yo
u t
o a
ccu
rate
ly
test
fo
r p
reg
nan
cy w
ith
in 5
m
inu
tes.
• F
ree
Ult
raso
unds
when
in
dic
ated
Act
ual p
hoto
of deve
lopin
g b
aby
ap
po
xim
ate
ly 4
8 d
ays
aft
er
con
cep
tion
• F
ree
Counse
ling o
n
pre
gnan
cy, ab
ort
ion
pro
cedure
s, a
nd
alt
ern
ati
ves
to a
bort
ions
So
pte
5eit
oic
e4
lien
Wa
wa
9a
ee
of
a &
tau
Pte
csaf
etee
t
• H
ou
sin
g R
efer
rals
Appro
pri
ate
refe
rral
s ca
n
be m
ade t
o H
ousi
ng
Ass
ista
nce A
gencie
s.
• C
hil
d C
are
Ref
erra
ls.
• R
efer
rals
fo
r M
edic
al
Care
, L
egal
Ass
ista
nce, or
oth
er
needed s
erv
ices.
• A
ssis
tan
ce i
n e
xp
lori
ng
o
pti
on
s fo
r A
do
pti
on
P
lace
men
t.
Infa
nt
Clo
thin
g a
nd
oth
er
baby n
ecess
itie
s avail
able
fo
r o
ur
clie
nts
on
W
ednesd
ays
only
.
• F
ree
Po
st-A
bo
rtio
n
Counse
ling a
vai
lable
on a
re
ferr
al
basi
s.
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e 1:
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98
z0000lnogseg
Sam
e "
e&
teee4"
4act
e S
etea
ce4
etI
titd
xfa
eacea
"People
clo
not unders
tand that th
ere
are
th
ousa
nds
of se
rious
phys
ical c
om
plic
a-
tions
from
abort
ion e
very
year
in this
co
un
try.
" -D
r.
Be
rna
rd N
ath
an
son
, O
bGyn
Imm
edia
te:
Inte
nse
pai
n,
punct
ure
d
ute
rus,
exce
ssiv
e ble
edin
g, in
fect
ion,
par
ts o
f bab
y l
eft
insi
de,
shock
/com
a,
dam
ag
e t
o o
ther
org
an
s, d
eath
Lat
er:
Ste
rili
ty,
mis
carr
iage/
st
illb
irth
, tu
bal
pre
gnan
cies
, pre
mat
ure
bir
ths,
pel
vic
in
flam
mat
ory
d
isease
, hyst
erec
tom
y
"Abort
ion h
as
a p
ain
ful a
fterm
ath
, re
gard
-le
ss o
f th
e w
om
an's
relig
ious b
elie
fs, or
how
posi
tive s
he m
ay
have
felt
befo
rehand
about her
decis
ion to a
bort
."
- V
ince
nt R
ue, P
hD
, P
sych
olo
gis
t
Eff
ects
on
Em
oti
on
s: G
uil
t, d
epre
ssio
n/
cry
ing, in
abil
ity t
o f
org
ive
yours
elf,
in
tense
gri
ef,
anger
, em
oti
onal
num
bnes
s, s
exual
pro
ble
ms,
low
ered
se
lf-es
teem
, nig
htm
ares
, dru
g or
alc
oh
ol
abu
se, eati
ng
dis
ord
ers
, su
icid
al u
rges
.
Pro
ble
na
re
ign
an
cy
of
Worceste
r,
In
c.
495
Ple
asan
t St.
Wor
cest
er, M
A 0
1609
1-
888-
310-
7217
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ft
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99
DID YOU KVOW.,- ...that during the
abortion procedure, the doctor rips the arms and legs off the baby while
he/she is still alive?
FETAL FACTS • Fetus is the Latin word which
means baby.
• A fetus is 100% human and suffers excruciating agony in an abortion.
• Scientifically speaking, life begins at conception and is continuous then on until death.
• Every genetic trait is already determined at conception including the color of skin, hair, eyes, etc.
ABORTIONISTS PROFIT OFF THE UNINFORMED
Abortionists don't give patients this information. If they did, most women would not have an abortion. In gross violation of basic women's rights, abortionists are tricking women into killing their babies. Women have a right to know this important information.
.18 weeks. Abonions are performed regularly on babies this age
Abortions are legal through all nine months of pregnancy eren for non-medical Masons.
Bashour00003
Case 1:08-cv-10066-JLT Document 145-18 Filed 08/09/11 Page 4 of 5
000300
ABORTION ALTERNATIVES • If you ever need help, take
ackantage of these free services also found in the yellow pages under abortion altematives, they offer;
• Free pregnancy tests
• Financial aid
• Free housing*
• Free baby clothes, goods etc. *Not available at all services
CALL THESE FRIENDLY AND CONFIDENTIAL SERVICES ANYTIME
1 (800) 550-4900 Birthright 1 (BOO) 395-4357 Care Net 1 (800) 662-2678 Several
Sources Foundation 1 (800) 238-4269 Bethany
Christian Services
or go to www.optionline.org
GOOD NEWS If you have had an abortion. Jesus will forgive you if you ask Him. Besides, you are only partly to blame because 1. You didn't know, and 2. The doctor wasn't upfront with you
WOMEN WHO HAD ABORTIONS
It may take a lifetime for a women to learn how to cope with the realization that she killed her very own baby. This psychological condition is now known as "Post- Abortion Trauma". There are support groups available for them. The most well known is Project Rachel at 617-783-8300.
MORE WOMEN DIE IN LEGAL ABORTIONS
Before abortion was legalized in 1973 only 39 women died from Blegal abortions. Today, over 450 women die a year from legal abortions! Abortions can't be made safe. Some complications include: Perforated uterus, infection, torn cervix, blood clots, hemorrhaging, infertility, and even death.
Flyer Composed by Defenders of Women
B ash ou r00004
Case 1:08-cv-10066-JLT Document 145-18 Filed 08/09/11 Page 5 of 5
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000347
,!;",
Case 1:08-cv-10066-JLT Document 143-13 Filed 08/09/11 Page 3 of 3
000348
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Cas
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08-c
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43-1
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File
d 08
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Pag
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49
Shea00125
Case 1:08-cv-10066-JLT Document 143-15 Filed 08/09/11 Page 2 of 2
BethleheDl House Pregnancy Care Center(413) 527-2861
Mailing Address:Location:Bethlehem HousePregnancy Care Center152 Northampton Street (Route 10)Easthampton, MA01027
P. O. Box 1393Easthampton, MA01027·1393
Please make checks payable to "Bethlehem House" and send your donation toP.O. Box 1393. Your contributions are tax deductible under the 501-C non-profit PARENT CORPORATION OUR LADY OF GUADALUPE HOMEFOUNDATION, INC.
Shea00103
Case 1:08-cv-10066-JLT Document 143-19 Filed 08/09/11 Page 2 of 3
000357
Casa BethlehentCentro de Cuido Del Emharazo
Servieios Disponibles:Centro de Cuidado De EmharazoPar Cita llamar a Daisy al 413) 315-3222
~ M te, de 9:00 AMa 7:00 PApoyoCompasivoReferidos y ConsejeriaGratis Prueba ConJideneial de EmbarazoGratis Asisteneia en Obtener:
Abstineneia y Edueaeion STDInformacion de AdopeionClases de LactaDeia MaternaProgramas de Cuidado de Debe y NinoAsistencia EdueaeionalComida de EmergeneiaAyuda Legal y FinaneieraViviendaEntrenamiento de TrabajoMaternidad y Suplemento de DebeCuidado de Emharazo
Ubieaeion: Direeeion de CorreoCentro de Cuido Del EmbarazoCasa Bethlehem P. O. Box 1393152 NorthaDlpton Street (Route 10) EasthaDlpton, MA01027-1393Eastham.pton, MA 01027
Por favor hago Ios cheques pagaderos a "Bethlehem House" y envie su Donaciona P.O. Box 1393. Su contribucion es deducible de impuestos bajo eIS01-C no confines de lucro CORPORACION DE PADRE DE LA FUNDACION NUESTRASENORA DE GUADALUPE, lNCORPORADO.
Shea0010S
Case 1:08-cv-10066-JLT Document 143-19 Filed 08/09/11 Page 3 of 3
000358
Cho ce?
19 week unborn baby
Or Child?There are alternatives to abortion ..•
There have to be.
0191)2 Righi to Life of Mkhig:1LI EtlucaliQnOlIfund
Shea00106
Case 1:08-cv-10066-JLT Document 143-20 Filed 08/09/11 Page 2 of 3
000359
ABORTION MYTHSM'H.~<;ri:'<71</"T [((<'-''P. V.
MYTH: Abortion is only legal through the first trimesterl~;'c.~'\~ ~tUI~i:;Box 96413·:i~3·503.j
FACT: Due to the radical scope of the Roe v. Wade and Doe v. BoltonU.S. Supreme Court decisions, abortion is legal through all nine monthsof pregnancy.
FACT: 11.8 percent of abortions take place every year in the UnitedStates during or after the 13th week of preqnancy.'
MYTH: Women obtain abortions only in rare and extreme cases.
FACT: In the U.S. alone, more than 1.2 mil/ion abortions were performedin 2003.2
FACT: Rape and incest are cited as reasons for only 1 percent of al/abortions."
FACT: More than four in five women say they had abortions for reasonsof inconvenience.'
MYTH: No one knows when human life begins.
FACT: "Physicians, biologists, and other scientists agree that conception[they defined fertilization and conception to be the same] marks thebeginning of the life of a human being - a being that is alive and is amember of the human species. There is overwhelming agreement onthis point in countless medical, biological and scientific writings."4
MYTH: "Wanted" children will not become abused children. Therefore, abortionwill act to reduce child abuse.
FACT: A landmark study shows that 91 percent of battered childrenwere from planned and wanted pregnancies." In fact, statistics showthe overall change from 1980 to 1993 was a growth of 249 percent inthe number of children who were abused or neglected in the UnitedStates."
MYTH: The typical abortive woman is a poor, minority teen.
FACT: Four out of every five abortions are obtained by women 20 yearsof age or older.'
FACT: Statistics show 55 percent of abortions are performed on whitewomen.'
I. The most recent sunistics from the Centers for Disease Control and Prevcnrlon (2003). ~ The mosr recent srndsdcs from the Alan CunmncherInsunue (2006) . .l. Perspectives on Sexual and Reproductive HC:llth Volume 37. Issuc S, September 2005'" Repcrr, Subcommlnec on Separationof Powers [0 Senate Judiciary Committee S. 1;8, 9711 Congress. )••Session 1981. ~. E. Lenowskl, Heartbeat, vol. 3. no. 4, Dec. ] 980. I, TheNational Incidence of Child Abuse and Negiecr.
III
II
Shea00107
Case 1:08-cv-10066-JLT Document 143-20 Filed 08/09/11 Page 3 of 3
000360
To le
arn
mor
e ab
out N
atur
al F
amily
Pla
nnin
g,
cont
act t
he C
oupl
e to
Cou
ple
Leag
ue, I
ntl.,
or
Tw
in C
ities
Nat
ural
Fam
ily P
lann
ing.
"
CO
NT
RA
CE
PT
ION
"
AB
OR
TIO
N I
N
DIS
GU
ISE
TI-
SE
TH
RE
AT
TO
TH
E H
EA
LT
H O
F W
OM
EN
AN
D
TH
E L
IFE
OF
TH
E U
NB
OR
N C
HIL
D
THE
IUD
1°
T
he In
trau
teri
ne D
evic
e (I
UD
) is
a pl
astic
dev
ice
T•
inse
rted
in th
e ut
erus
of
a '
wom
an f
or b
irth
con
trol
pur
pose
s. I
t is
ofte
n co
mbi
ned
wilh
act
ive
chem
ical
s su
ch a
s pr
oges
tero
ne o
r cop
per.
Whi
le th
c m
anuf
actu
rers
su
gges
t Tha
t the
'IU
D p
reve
nts
ferti
lizat
ion
and
that
th
e co
pper
in th
e IU
D k
ills
sper
m, t
here
is n
o ev
iden
ce to
sup
port
eith
er h
ypot
hesi
s?'
The
KID
doe
s ito
t pre
vent
ovu
latio
n. M
oreo
ver,
it do
es li
ttle
or n
othi
ng to
inte
rfer
e w
ith s
perm
m
igra
tion
or f
ertil
izat
ion
(con
cept
ion)
. "It
is
thou
ght t
o w
ork
by
kee
pin
g o
fer
tiliz
ed e
gg [s
ic]
from
atta
chin
g its
elf
to th
e ut
erus
.""
Thi
s is
ac
com
plis
hed
mai
nly
by ir
rita
ting
and
infl
amin
g th
e lin
ing
of th
e ut
erus
, thu
s pr
even
ting
the
new
ly
conc
eive
d hu
man
life
from
suc
cess
fully
im
plan
ting
in th
e lin
ing
of th
e w
omb.
The
IU
D,
then
, is
not a
con
trac
eptiv
e at
all.
It a
cts
sole
ly to
ca
use
earl
y ab
ortio
n.
Thc
IUD
can
be
a ca
use
of s
erio
us c
ompl
icat
ions
w
hich
incl
ude
hem
orrh
age,
pel
vic
infe
ctio
n, tu
bal
preg
nanc
y an
d pe
rfor
atio
n of
the
uter
us. T
hese
m
ay p
rodu
ce s
teri
lity.
"
TH
E M
OR
NIN
G-A
FT
ER
PIL
L
App
rove
d in
200
6 fo
r dis
pens
ing
with
out a
pr
escr
iptio
n to
wom
en o
ver a
ge 1
8, th
is m
etho
d is
du
bbed
"em
erge
ncy
birt
h co
ntro
l" b
ecau
se it
is
take
n up
to 7
2lio
urs
afte
r in
terc
ours
e w
ith a
se
cond
dos
e ta
ken
12 h
ours
late
r. T
he a
ctiv
e in
gred
ient
s ar
e th
e sa
me
as th
e P
ill,
exc
ept i
n hi
gher
dos
es. T
here
are
two
type
s of
mom
ing-
afte
r pill
s; th
e fi
rst h
as o
nly
one
horm
one,
pr
oges
tin (r
efer
red
to a
s Pl
an B
), an
d th
e ot
her
incl
udes
bot
h pr
oges
tin a
nd e
stro
gen.
" Pl
an B
in
hibi
ts o
vula
tion
and
prev
ents
the
new
ly
conc
eive
d lif
e fr
om im
plan
ting
and
surv
ivin
g in
th
e w
omb
shou
ld f
ertil
izat
ion
take
pla
ce."
Side
eff
ects
may
incl
ude
naus
ea, v
omiti
ng,
abdo
min
al p
ain,
fatig
ue, h
eada
che,
men
stm
al
chan
ges,
diz
zine
ss, b
reas
t ten
dern
ess,
dia
rrhe
a, a
s w
ell a
s a
risk
of e
ctop
ic p
regn
ancy
. 29
RU
-486
TH
E A
BO
RT
ION
PIL
L
Als
o kn
own
as M
ifep
rist
one,
this
dru
g en
able
s ch
emic
al a
bort
ion
up to
the
late
r sta
ges
of
preg
nanc
y."
In a
dditi
on to
end
ing
hum
an li
fe,
the
abor
tion
pill
is h
arm
ful t
o w
omen
as
wel
l. M
any
of th
e ad
vers
e si
de e
ffec
ts o
f the
dru
g w
ere
judg
cd to
bc
seve
re, a
nd s
ever
al d
eath
s ha
ve b
een
attr
ibut
ed to
it."
Des
pite
the
horr
ific
list
of
prob
lem
s, R
U-48
6 is
stil
l on
the
mar
ket.
TH
E T
RU
TH
Mu
sr B
e T
ow
D
isgu
isin
g th
tse
met
hods
by
calli
ng th
em "
cont
ra-
cept
ive"
is a
gra
ve d
ecep
tion.
An
abor
tion-
caus
ing
mec
hani
sm is
pre
sent
in a
ll th
ese
met
hods
. Whe
n-ev
er th
ere
is a
bre
ak-th
roug
h ov
ulat
ion,
and
spe
nn
and
egg
unite
, man
y un
susp
ectin
gwom
en a
re
caus
ing
thei
r new
ly-c
once
ived
chi
ld tu
be a
borte
d be
fore
they
eve
n kn
ow th
ey a
re p
regn
ant.
Sadl
y,
man
ufac
ture
rs c
ontin
ue to
bol
dly
intro
duce
abo
rtion
-ca
usin
g dr
ugs,
ava
ilabl
e w
ithou
t doc
tor c
onsu
ltatio
n.
Dr.
Bog
omir
Kuh
ar, a
pha
rmac
ist c
once
rned
abo
ut
the
plag
ue o
f che
mic
al a
bort
ion,
has
eva
luat
ed a
ll fo
rms
of ie
duce
d ab
ortio
n, -
the
Pill.
Dep
o-Pr
over
a, N
otpl
ant,
1UD
's an
d su
rgic
al -
and
es
timat
ed th
at w
hen
com
bine
d, a
s m
any
as 1
43 •
m
illio
n pr
egna
ncie
s ar
e te
rmin
ated
eac
h ye
ar in
th
e U
nite
d St
ates
alo
ne."
Thi
s is
a g
hast
ly f
igur
e w
hen
com
pare
d to
the
sole
1.2
mill
ion
surg
ical
ab
ortio
ns u
sual
ly re
porte
d as
the
abor
tion
stat
istic
."
Fort
unat
ely,
an
alte
rnat
ive
is a
vaila
ble.
As
Dr.
R
udol
ph E
hman
n, h
ead
phys
icia
n of
OB
/GY
N a
t a
Swis
s ho
spita
l sta
ted.
"T
he o
nly
cour
se w
hich
w
ill d
o ju
stic
e to
the
com
plet
e hu
man
bei
ng in
a
dign
ifie
d m
anne
r is,
in m
y ex
peri
ence
, Nat
ural
Fa
mily
Pla
nnin
g."3
4
Cou
ples
nee
d to
kno
w s
ome
met
hods
of b
irth
con
trol
ca
st b
e ha
rmfu
l to
thei
r he
alth
and
dea
dly
to
thei
r unb
orn
child
ren.
The
y al
so
have
the
righ
t to
know
ther
e is
a
safe
, hea
lthy,
and
•
effe
ctiv
e al
tern
ativ
e av
aila
ble
.
Endn
otes
1.
Len
nart
Nils
son
el .
al, A
ChM
is D
om (
New
Ye*
, NY
: Dal
econ
e Pr
ms/
Se
ymou
r Law
renc
e, 1
977)
, p. 1
3. 2
. 'Th
e D
ram
a of
F a
tal D
evel
opm
ent
Amer
ican
Baby
(Jan
uary
198
9), p
.45.
3. R
hysic
iesle
Dos
S Re
fere
nce,
em
Cit
(M
antv
ale,
NJ:
Tho
mso
n FO
R, 2
008)
, p 2
402.
4. G
oa*
I o C
oupl
e Le
ague
, 'T
he P
ill: H
ow D
oos
ItWor
k7Is
il Sa
fer(
Cin
cinn
all,
OH
: Cou
ple
Is C
oupl
e Le
ague
, I n
tl., I
nc.,
199
3), p
.4. &
Dd.
: The
Pit
pp.2
-4, 6
. Dr.
Bo
gado
' M.
Kuh
er,
InM
nr H
omic
ides
Thn
sugh
Con
trace
pl9e
s,2. E
d „
ata
rdst
arm
, Ky:
Et
erna
l Life
, 199
5), p
p. 1
-2. 7
. Ph
ysic
ians
' Des
k R
efer
ence
, 200
8, p
.240
5 8,
D
r. D
avid
St e
rns,
et a
L . T
he D
inh
Con
ical
Gam
e: G
ambi
an P
AM L
ire.
(S
taff
ord,
VA
: A
mer
ean
LH L
eagu
e/ P
harm
acis
tst o
r Lit
e.10
99).
p.2.
.
Phys
icia
ns D
esk
RAM
C°.
200
8, pp
. 240
3-24
05.
10. S
eine
n Sn
ider
. 'T
he
Pill:
T h
irly
Yea
rs e
l S z
loty
Gam
ins.
' FD
A Co
nsum
er, L
i, S.
Dep
art m
erit
el
Hea
lth a
nd H
uman
Ser
vos,
Rem
it; le
d 1
tern
Dec
embe
r 199
0. 0
1.91
,5
Publ
icat
ion
No.
(F 9
2.31
93, 9
.4. 1
1. P
hysi
cian
's D
esk
Ref
mec
ca, 2
008,
p.
2403
. 72.
Sre
der.
p.4.
ta.
Kuh
er, p
.11.
14.
1908
1, p
.28.
15.
Dr.
Cha
s K
ahle
nbam
.'Mew
the
NI a
nd O
ther
Con
trace
ptiv
es W
ork,
' (D
ayto
n. O
N: O
ne
Mom
Sou
l, 20
06),
p.11
. 16.
Phy
sici
anS
Des
k R
efer
ence
, 200
8. 5
1.26
14-8
815.
17
. Dor
i S le
hbn,
"Dep
o.Pr
otre
ra: T
he Q
uart
erly
Can
t rec
eptiv
e,' F
DA
C
onsu
mer
. U. S
. Dep
urim
ent o
r Raa
b ft
and
14 te
nan
Sem
mes
. Rep
eale
d( r
em
Mar
ch 1
993.
DO
HS
Pubb
catto
n N
o. (F
DA
) 93-
3206
, p.
2. it
. 'Fa
cts A
bout
Birt
h C
ontra
' (N
ew Y
ork.
NY
: Plu
me
Par a
nnea
l F e
dera
tich
of A
rne
rea.
l 19
92l,
p.6.
19.
Reh
m, p
p. 1
4, 2
9. 2
0. K
ehle
nbor
n, p
.18.
21.
Phy
sicia
ns' D
esk
Refe
renc
e,19
97, p
287t
22
. M
ayee
int.
cern
12
May
200
8.
Binh
core
rd:
Impl
ant 2
5 Ja
nuar
y 20
09. <
hi tp
/Mw
w.m
cnoc
kfic
.com
Mea
ftlub
irth-
corr
eol/
8100
999/
PAG
E.B1
0005
6,. 2
3. J
ude
brow
n an
d D
r. K
est i
ne 1A
, E
tym
a,
'Wha
t Ls N
eepl
ant7
: (St
affo
rd. V
A: A
mer
ican
Lila
Lea
gue,
Mc.
, 199
2 re
vise
d re
19
961,
a. 3
. 24.
Org
anon
LISA
Inc.
Jul)
2006
. Im
plan
on (e
l one
gestr
al im
plan
t )
Phys
icia
n I t
reed
. 5 M
ay20
68.
‘h t
ipik
ern.
impl
anor
e-us
a.cor
niau
thig
ed
irnag
erJ5
43_1
7492
1.pd
le. 2
6,
Des
k Re
fere
rve,
2003
, p.
1p51
. 26.
'C
ontra
cept
ive
Meth
ods:
Prev
ent i
ng en
Unp
lanne
d Pleg
nanc
y:M
enne
epol
is.
MN
: Min
neso
ta D
epar
tmar
d S
Hea
lth L
ibra
ry S
emite
s, 19
89).
Pam
phle
t No.
X.
21. 2
7.
Phys
kian
s' D
esk
Rere
ranc
e, 20
08, p
p. 1
055.
1056
. M
. D
r. Sa
ndhy
a Pr
ethi
, Morn
inn.e
l le
r E
nver
tancv
aid
nrEC,rinl
28
Aug
ust
2096
. M
ayoC
hnic
.con
t 19
Octo
ber 2
007.
xhip:
Miev
ed
nicC
omM
eale
Sine
enin
g-
efler
-pill
IANO
OS92
, 29
. T
in D
rake
lush
eak
se
ion
Pa; F
DA
F sn
ows;
N
orth
Hav
en, C
T: C
ircle
Med
ia, N
at to
nal C
athol
ic R
egis
t er,
Sept
em
ber 3
9.
2000
. 36,
Dun
ned
Plha
nner
eutic
als,
Inc
Man
ufac
ture
r's P
torlu
el In
form
atio
n.
Augu
st 20
06. P
lan
8 (L
ever
arge
st re
l T A
ids.
0.7
5 m
g. 5
May
209
8. s
h O
pt/
ww
w.g
o2pl
an b
.cor
rePD
F/Pl
an8P
1 N
IP. 3
1. D
r. R
uda
lpl E
hman
n,
'Con
sequ
ence
s et C
ant r
ecep
eon
and A
bed
decl
are
Birt
h C
ontro
l:ed.
Fr.
Paul
M
arx,
04,
13. P
h.D
. a n
d Fr
. Ma S
heri
Ha b
itter
, 0.1
5.,
Ph,D
, ( G
aith
ersb
urg,
M
D, H
u m
an L
i e I
nlem
atio
nal,
ea d
at a
). 32
604
86F
acts
.arg
. M
edica
l In
form
atio
n a
bout
R1J
.48
6 trA
il ae
risto
nel.
10 M
ay 2
009 a
ht
tp./
w
ww
.ruat
iefa
ctca
rglid
ex.c
hnlp
ageo
side
eff e
ats,
. 33.
Cub
a:, p
.15.
34.
&dm
P.
29. 3
5. E
hman
n.
PRO
LIf
e A
cros
s A
MeR
ICA
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he B
illbo
ard
Peop
le"
P.O
. Box
I 86
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neap
olis
, MN
55
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(612
) 78
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PRO
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Acr
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ICA
Copy
right1
948.
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ated
201
0
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Pag
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0003
61
TH
E U
NT
OL
D S
TO
RY
TH
E P
ILL
The
birth
con
trol p
ill, o
r so
the
Pill,
is a
dru
g co
nsis
ting
of a
rtific
ial
horm
ones
, The
Pill
is
The
tcrm
"co
ntra
cept
ive"
is o
ften
mis
used
. Man
y pe
ople
do
not r
ealiz
e th
at c
omm
only
use
d fo
rms
of "
birth
con
trol"
or "
cont
race
ptio
n" c
an c
ause
an
abor
tion
early
in a
pre
gnan
cy.
The
pre
fix c
ontr
a m
eans
"a
gain
st"
and
cept
ion
mea
ns
"con
cept
ion.
" B
ecau
se
hum
an li
fe is
a c
ontin
uous
pr
oces
s th
at b
egin
s at
fe
rtiliz
atio
n (w
hen
an e
gg
and
sper
m jo
in)
1•2 a
co
ntra
cept
ive
shou
ld p
reve
nt c
once
ptio
n or
fe
rtiliz
atio
n fr
om ta
king
pla
ce.
How
ever
, man
y so
-cal
led
cont
race
ptiv
es d
o no
t pr
even
t con
cept
ion.
Oft
en th
ey a
chie
ve th
eir
"con
trace
ptiv
e" e
ffec
t by
prev
entin
g ne
wly
-co
ncei
ved
hum
an li
fe (a
n em
bryo
) fro
m
impl
antin
g in
the
wom
b w
hen
he o
r she
is o
ne
wee
k ol
d. W
ithou
t the
nut
rien
t-ri
ch h
ome
of th
e m
othe
r's w
omb,
this
tiny
new
life
die
s, a
nd th
is is
ca
lled
an a
borti
on.
Not
onl
y ca
n "c
ontra
cept
ives
" be
dea
dly
for
unbo
rn c
hild
ren,
they
als
o po
se s
erio
us h
ealth
th
reat
s to
the
wom
en u
sing
thes
e m
etho
ds.
The
aver
age
pers
on is
una
war
e of
the
way
var
ious
bi
rth c
ontro
l met
hods
wor
k, e
ven
thou
gh th
e m
edic
al e
ffec
ts a
rc s
tate
d in
the
patie
nt
info
rmat
ion
prov
ided
with
the
drug
or d
evic
e.
Bel
ow a
re s
ome
fact
s re
gard
ing
the
actio
n of
the
birth
con
trol p
ill a
nd o
ther
con
trace
ptiv
es.
take
n or
ally
, usu
ally
eve
ry d
ay, t
o pr
even
t or t
o en
d a
preg
nanc
y. T
here
are
two
type
s of
birt
h co
ntro
l pill
s: th
e "c
ombi
ned
pilr
con
tain
s bo
th
estro
gen
and
prog
estin
; the
"m
ini-p
ill"
cont
ains
on
ly p
roge
stin
.
Whi
le th
e Pi
ll is
caU
ed a
n "o
ral c
ontra
cept
ive,
" th
e ac
tual
pre
vent
ion
of p
regn
ancy
is o
nly
achi
eved
in tw
o of
its
thre
e m
echa
nism
s, a
s no
ted
in th
is e
xcer
pt fr
om th
e P
hys
icia
ns'
D
esk
Ref
eren
ce:
"Alth
ough t
he p
rim
ly m
ech
anis
m o
f th
is a
ctio
n is
in
hib
ition o
f ovu
latio
n, oth
er
alte
ratio
ns
incl
ude
chan
ges
in th
e ce
rvic
al m
ucus
(w
hich
incr
ease
the
diff
iculty
ofs
perm
tuary
into
dw
merits
) and the
endom
etr
inm
(w
hic
h m
ay
reduce
the li
kelih
ood o
f im
pla
nta
tion
)."3
The
Pill,
ther
efor
e, p
reve
nts
the
birth
of a
bab
y in
th
ree
way
s. F
irst
, ovu
latio
n is
inhi
bite
d by
su
ppre
ssin
g th
e pa
rt of
the
brai
n w
hich
sig
nals
for
an e
gg to
be
rele
ased
from
an
ovar
y. S
econ
d, th
e ce
rvic
al m
ucus
is th
icke
ned
to m
ake
it m
ore
diff
icul
t for
spe
rm to
pas
s th
roug
h an
d fe
rtiliz
e an
eg
g. l'
hird
, the
lini
ng o
f the
ute
rus
is c
hang
ed. o
r th
inne
d, s
o th
at n
ew li
fe c
anno
t im
plan
t.
The
first
two
actio
ns a
re c
ontra
cept
ive
in n
atur
e be
caus
e sp
erm
and
egg
nev
er u
nite
. But
whe
n th
e Pi
ll fa
ils to
pre
vent
ovu
latio
n, re
ferr
ed to
as
"bre
akth
roug
h ov
ulat
ion:
. and
a p
regn
ancy
re
sults
, the
last
met
hod
caus
es a
n ab
ortio
n. "
If th
e em
bryo
die
s, th
e re
mai
ns a
re p
asse
d al
ong
in th
e ne
xt b
leed
ing
epis
ode,
whi
ch, i
ncid
enta
lly, i
s no
t a
true
men
stru
atio
n, e
ven
thou
gh it
may
be
perc
eive
d as
suc
h:"
lln,s
, the
fetu
s is
abo
rted
.
Bre
akth
roug
h ov
ulat
ion
occu
rs in
2%
to 1
0% o
f cy
cles
of w
omen
usi
ng th
e co
mbi
ned
PilL
5 M
oreo
ver,
thes
e fig
ures
do
not t
ake
into
acc
ount
tw
o im
port
ant f
acto
rs. F
irst
, man
y m
edic
ines
suc
h as
ant
ibio
tics,
and
oth
er h
ealth
indi
cato
rs
(nut
ritio
n st
atus
. etc
.) ca
n re
duce
the
Pill'
s ab
ility
to
sup
pres
s ov
ulat
ion.
6.7
Seco
nd, d
ue to
the
Pill'
s ha
rmfu
l sid
e ef
fect
s, th
e do
sage
of t
he c
ontra
cept
ive
com
pone
nt o
f the
Pill
ha
s be
en g
radu
ally
low
ered
ove
r the
yea
rs.
How
ever
, thi
s al
low
s th
e ab
ortio
n-ca
usin
g co
mpo
nent
to c
ome
into
pla
y m
ore
ofte
n. It
is
estim
ated
that
som
e fo
rms
of to
day'
s Pi
ll al
low
ov
ulat
ion
up to
50%
of t
he ti
me,
5 res
ultin
g in
m
ore
abor
tions
.
In a
dditi
on to
the
thre
at to
life
in th
e w
omb,
the
wom
an ta
king
the
Pill
cont
inue
s to
face
man
y se
riou
s si
de e
ffec
ts. T
he P
ill h
as-b
een
prov
en to
en
able
blo
od c
lotti
ng d
efec
ts s
uch
as h
eart
atta
cks
and
stro
kes,
hig
h bl
ood
pres
sure
, can
cer r
isks
(c
ervi
x, o
vary
, bre
ast,
and
liver
), be
nign
tum
ors
of
the
liver
, gal
lbla
dder
dis
ease
and
cha
nges
in
visi
on. A
lso
of c
once
rn a
re m
inor
sid
e ef
fect
s su
ch a
s na
usea
, vom
iting
, spo
tting
or b
leed
ing
betw
een
perio
ds, m
isse
d m
enst
rual
per
iods
, bre
ast
tend
erne
ss, m
igra
ines
, hea
dach
es, m
enta
l de
pres
sion
and
wei
ght g
ain.
Mor
eove
r, w
omen
with
a h
isto
ry o
f dia
bete
s, h
igh
bloo
d pr
essu
re, h
igh
chol
este
rol,
heav
y sm
okin
g,
exce
ssiv
e w
eigh
t and
dep
ress
ion
are
at h
ighe
r ris
k fo
r all
of th
ese
side
eff
ects
. 11'
12
DE
PO
-PR
OV
ER
A
Dep
o-Pr
over
a, o
r "th
e Sh
ot"
as it
is c
alle
d, is
a lo
ng-a
ctin
g sy
nthe
tic h
orm
one
whi
ch is
in
ject
ed in
tram
uscu
larly
eve
ry.
thre
e m
onth
s. T
his
drug
has
thre
e m
echa
nism
s si
mila
r to
the
Pill:
it a
ttem
pts
to b
lock
the
rele
ase
of a
n eg
g fr
om th
e ov
ary;
it c
hang
es th
e co
nsis
tenc
y of
the
cerv
ical
muc
us; a
nd it
cha
nges
th
e lin
ing
of th
e ta
ms
so th
at n
ewly
con
ceiv
ed
life
cann
ot a
ttach
and
ther
efor
e di
es.'
Thu
s.D
epo-
Prov
era
has
two
mec
hani
sms
that
arc
co
ntra
cept
ive
and
one
that
cau
ses
an e
arly
ab
ortio
n. R
esea
rch
indi
cate
s a
brea
kthr
ough
ov
ulat
ion
rate
of 4
0-60
% o
f cyc
les
for D
epo-
Prov
era
user
s."
Thi
s hi
gh ra
te fo
rces
freq
uent
use
of
the
abor
tion-
caus
ing
mec
hani
sm in
ord
er fo
r th
e Sh
ot to
be
"eff
ectiv
e."
Res
earc
h st
udie
s ha
ve s
how
n D
epo-
Prov
era
incr
ease
s th
e ris
k of
bre
ast c
ance
r at l
east
190
% in
w
omen
who
use
d it
mor
e th
an tw
o ye
ars
befo
re a
ge
25.'5
Oth
er lo
ng-t
erm
sid
e ef
fect
s in
clud
e se
vere
fe
tal a
bnor
mal
ities
if a
wom
an b
ecom
es p
regn
ant
whi
le ta
king
the
Shot
, and
incr
ease
s ris
k of
ute
rine
canc
er, o
steo
poro
sis,
arth
ritis
, blo
od c
lots
and
st
roke
. The
re is
als
o a
chan
ce o
f pre
gnan
cy
deve
lopi
ng o
utsi
de th
e ut
erus
(ect
opic
pre
gnan
cy).
Poss
ible
sho
rt te
rm s
ide
effe
cts
incl
ude
irre
gula
r m
enst
rual
ble
edin
g (b
reak
thro
ugh
blee
ding
, sp
ottin
g, o
r no
blee
ding
at a
ll), h
eada
che,
de
pres
sion
, wei
ght g
ain,
diz
zine
ss a
nd n
ause
a.'6
Als
o, D
epo-
Prov
era
use
caus
es a
del
ay in
fert
ility
af
ter t
he tr
eatm
ent h
as e
nded
. Wom
en a
re u
sual
ly
unab
le to
bec
ome
preg
nant
six
mon
ths
to tw
o ye
ars
afte
r the
y st
op ta
king
the
Shot
. Las
tly, i
f si
de e
ffec
ts d
o oc
cur,
they
can
last
thre
e m
onth
s ev
en if
onl
y on
e sh
ot w
as ta
ken.
"
IMP
LA
NT
S
Nor
plan
t is
a sy
nthe
tic h
orm
one
enca
sed
in fi
ve o
r si
x fl
exib
le c
lose
d ca
psul
es, o
r rod
s, w
hich
are
su
rgic
ally
impl
ante
d be
neat
h th
e sk
in. A
sm
all
amou
nt o
f the
hor
mon
e is
rele
ased
con
stan
tly a
nd
acts
up
to fi
ve y
ears
. It w
orks
to p
reve
nt
ovul
atio
n an
d fe
rtili
zatio
n, b
ut a
lso
hind
ers
new
lif
e fr
om im
plan
ting
in th
e w
omb
whe
n th
e fi
rst
two
mec
hani
sms
WI.
°
Stud
ies
indi
cate
that
bre
akth
roug
h ov
ulat
ion
occu
rs in
50-
65%
of c
ycle
s.°
In a
dditi
on, o
ther
st
udie
s ha
ve s
how
n th
at s
perm
mig
rate
eas
ily,
even
with
hig
h do
ses
of s
ynth
etic
pro
gest
in. T
his,
co
uple
d w
ith th
e hi
gh fr
eque
ncy
of b
reak
thro
ugh
ovul
atio
n, s
ugge
sts
that
pro
gest
in-b
ased
pro
duct
s su
ch a
s N
orpl
ant a
nd D
epo-
Prov
era
allo
w a
hig
h ra
te o
f fer
tiliz
atio
n an
d su
bseq
uent
abo
rtio
n,
poss
ibly
eve
n gr
eate
r tha
n bi
rth
cont
rol p
ills.
"
Nor
plan
t's s
ide
effe
cts
incl
ude
irre
gula
r men
stru
al
blee
ding
(pro
long
ed, f
requ
ent,
spot
ting
or n
o bl
eedi
ng a
t all)
, hea
dach
e, n
ervo
usne
ss, a
nxie
ty,
depr
essi
on, n
ause
a, v
omiti
ng, d
izzi
ness
, acn
e,
wei
ght g
ain,
loss
of a
ppet
ite a
nd h
air l
oss.
An
ecto
pic
preg
nanc
y m
ay d
evel
op. T
here
may
als
o bc
pai
n or
itch
ing
near
the
impl
ant s
ite.`'
Nor
plan
t was
rem
oved
from
the
U.S
. mar
ket i
n 20
00 fa
cing
9ue
stio
ns a
bout
the
drug
dos
age
of
certa
in lo
ts.1
- A m
ore
likel
y re
ason
may
hav
e be
en
the
grow
ing
num
ber o
f law
suits
aga
inst
its
man
ufac
ture
r due
to in
fect
ion
and
diff
icul
ty
rem
ovin
g th
e im
plan
ts.'
A n
ew p
roge
stin
-bas
ed
prod
uct,
Impl
anon
, was
app
rove
d in
200
6 an
d th
e si
de e
ffec
ts a
re si
mila
r to
its p
rede
cess
or, N
orpl
ant.2
4
t I toovqs
Cas
e 1:
08-c
v-10
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D
ocum
ent 1
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d 08
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11
Pag
e 3
of 3
0003
62
RAPE
P
ub
lic
op
inio
n i
s h
eav
ily
o
n t
he s
ide o
f ab
ort
ion
in
case
s o
f ra
pe.
• A
rio
rdin
g t
o t
he
19
96
Gal
lup
Po
ll o
f p
ub
lic
op
inio
n,
77
per
cen
t. o
f A
men
cari
s th
ink
abo
rtio
n s
ho
uld
be
leg
al t
or
a p
reg
nan
cy
(aw
ard
by
rap
e at
nr
est
Th
ere
is
a l
ow
in
cid
ence
of
pre
gnancy r
esu
ltin
g
aft
er
rap
e.
• T
he
nat
ion
al r
ape
-rel
aied
pre
gn
ancy
rat
v i
s 5
p
erce
nt
amo
ng
vic
tim
s o
i re
pro
du
ctiv
e. a
ge;
amo
ng
ad
ult
wo
men
, ab
ou
t 3
2,1
01
pre
gn
anci
es r
esu
lt t
rofi
l ra
pe
each
yea
r.
• In
19
96
, th
c A
rneow
n J
ourn
al o
f O
bsl
elr
,(,
and
Gy
nec
olo
gy
pu
hli
ched
a r
eport
th
at
focu
sed
on
rap
e-re
late
d p
reg
nan
cy a
s ev
alu
ated
wit
hin
th
e N
atio
nal
1N
om
en's
Stu
dy
Of
a n
atio
nal
sam
ple
of
mo
re t
han
4,0
00
wir
men
, 'h
ere
wer
e 3
4 r
ape-
rela
ted
pre
gn
anci
es, ia
s o
f tk
ese
csr
iii
mtt
ed b
y
rela
tive
s
Ab
ort
ion
isn
't a
healt
hy
so
luti
on t
o a
pre
gnant
rape v
icti
m.
• In
a s
in v
oy o
f 11
VO
MPT
I pre
gnant
by a
ssau
lt, is
of
19
2 w
om
en e
nd
ed t
hei
r p
reg
nan
cy b
y
abort
ion F
oll
y f
our
wom
en e
xpli
cary
reg
rett
ed
th
eir
dder
:mil
sai
d t
hat
abo
rtio
n h
ad b
eer
the
,...,r
on
g s
olu
tio
n
0
their
pre
gnam
ies
• In
that
sam
e su
rvey
, ot
r he
133 v
iorn
en s
yho
car r
led
th
eir
bab
ies
to t
erm
, m
ore
than 8
0
per
cen
t ex
plic
itly
exp
ress
ed h
appi
ness
that
they
had
chose
n t
o g
ive
bir
th t
o t
hei
r ch
ild.
l'io
ne o
f th
e w
om
en s
tate
d t
hat
they d
id n
ot
sc:a
nt
thei
r ch
ild o
r w
isll
ed t
hat
they
had
',ho
ver
s ab
ort
ion
!n
stea
d -
Th
e e
ffects
of
ab
ort
ion
are
sim
ilar
to t
he e
ffects
o
f ra
pe
. •
Rap
e v
icti
ms
hav
e o
ver
wh
elm
ing
fee
lin
gs
of
ang
er,
dep
ress
ion
, and g
uil
t T
hey l
eel
dir
ty
and v
iola
ted a
nd c
an h
ave
flas
hbac
ks,
rag
htm
ares
, an
d i
nso
mn
ia. A
fter
bei
ng
sexu
ally
ass
ault
ed,
man
y s
how
a l
ack
of
inte
rest
in
fri
end
s an
d f
atal
ly a
nd
bec
om
e
isol
ated
. S
oir
le e
ven
conte
mpla
te s
uic
ide
• A
mong t
he r
epo
rted
rea
ctio
ns
of
wo
men
wh
o
hav
e had
ab
ort
ion
s ar
e d
epre
ssio
n, lo
ss o
f
self
-est
eem
, se
lf-d
estr
uct
ive
beh
avio
r, s
leep
dis
ord
ers,
ste
rili
ty,
im.r
ec,s
eci r
isk
of
bre
ast
ran
ter,
mis
carr
iage
s,
lovv
er s
elf-
este
em,
suic
idal
im
puls
es,
feel
ing
s o
f h
elp
less
nes
s,
ang
er, m
emo
ry l
oss
, ch
ron
ic p
rob
lem
s w
ith
elat
ionsh
ips,
anxie
ty a
ttail
,c, an
d q
uil
t an
d
rem
ors
e
felt
gre
at j
oy a
nd
reli
ef t
hat
she
wan
ted
me—
unti
l I
aske
d he
r ,
abou
t ab
orti
on. S
he
cl.
mai
ntai
ned
for
the
firs
t si
x \••
•••"
'4".
yea
rs o
f m
y kn
owin
g he
r th
at
she
wou
ld h
ave
abor
ted
me
had
it
been
leg
al w
hen
I w
as c
once
ived
in
Oct
ober
196
8. S
he l
ater
rev
eale
d sh
e ha
d ac
tual
ly g
one
to t
wo
back
-all
ey
abor
tion
ists
, and
tha
t I
was
alm
ost
abor
ted.
The
fir
st h
ad t
he t
ypic
al b
ack-
alle
y co
ndit
ions
you
hea
r ab
out
as t
o
why
she
sho
uld
have
bee
n ab
le t
o "s
afel
y an
d le
gall
y" a
bort
me.
Tho
se
cond
itio
ns, a
nd t
he f
act
that
it
was
il
lega
l, c
ause
d he
r to
bac
k ou
t.
For
the
sec
ond
abor
tion
ist,
she
was
sc
hedu
led
to m
eet
som
eone
at
nigh
t by
the
D
etro
it I
nsti
tute
of
Art
Som
eone
wou
ld
appr
oach
her
, say
her
nam
e, b
lind
fold
he
r, p
ut h
er i
n th
e ba
ck s
eat
of a
car
, ta
ke h
er a
nd a
bort
me,
bli
ndfo
ld h
er
agai
n, a
nd d
rop
her
back
oft
She
was
st
ill
afra
id f
or h
er o
wn
safe
ty, b
ut s
he
was
pre
pare
d to
go
thro
ugh
wit
h it
. T
he d
ay s
he v
vas
to a
bort
me,
m
y au
nt w
as g
oing
to
driv
e he
r.
Tha
t's w
hen
she
says
one
of
the
wor
st s
now
stor
rns
of t
he
cent
ury
fell
on
the
Det
roit
ar
ea, I
t sn
owed
for
day
s an
d da
ys a
nd t
he r
oads
w
ere
bloc
ked
for
wee
ks.
Tha
t w
as i
t. S
he t
houg
ht
she
was
too
far
alo
ng t
o go
thr
ough
wit
h it
.
RE
BE
CC
A
I jus
t ba
rely
mad
e it
. The
tri
al d
ate
in
Roe
v.
Wad
e w
as o
n m
y fi
rst
birt
h da
te,
and
the
U.S
. Sup
rem
e C
ourt
dec
isio
n w
as e
xact
ly t
hree
and
a h
alf
year
s to
m
y bi
rth
date
(Ju
ly 2
2, 1
969/
Janu
ary
22, 1
973.
) I'm
so
grat
eful
my
life
w
as s
pare
d!
As
a fa
mil
y la
w a
ttor
ney,
I'v
e ha
d th
e pr
ivil
ege
of p
rovi
ding
fre
e le
gal
repr
e-se
ntat
ion
to w
omen
who
wer
e be
ing
coer
ced
into
abo
rtin
g, a
nd I
eve
n ha
d fo
ur a
bort
ion-
rela
ted
case
s th
at m
ade
nati
onal
new
s. T
oday
, I a
m a
sta
y-at
-ho
me
mom
of
our
adop
ted
son.
I'm
ho
nore
d th
at G
od h
as u
sed
my
life
in
such
way
s, b
ut I
've
lear
ned
that
my
valu
e is
not
bas
ed o
n ho
w I
was
co
ncei
ved,
who
rai
sed
me,
wha
t ot
her
peop
le
thin
k of
my
life
, or
even
wha
t I d
o w
ith
my
life
. I'm
not
a c
hild
of
rape
, but
a c
hild
of
God
, and
I h
ave
valu
e be
caus
e G
od c
reat
ed
me
and
wan
ted
me
here
. If
you
ask
my
birt
h m
othe
r to
day,
she
w
ill
say
that
I a
m a
ble
ssin
g to
her
. If
only
eve
ryon
e w
ould
rea
lize
the
tru
th
that
eve
ry c
hild
is
a gi
ft!
The
n w
hen
they
hea
r of
a s
itua
tion
suc
h as
min
e,
inst
ead
of s
ayin
g. "
Oh
how
aw
ful!
You
mea
n to
tel
l m
e th
is w
oman
w
as ra
ped
and
was
act
ually
forc
ed
to c
arry
th
at
baby
?"—
peo
ple
coul
d sa
y, "
You
mea
n to
tell
me
that
God
rew
arde
d th
is
wom
an w
ith th
e gi
ft of
this
ch
ild's
life
for
the
su
fferin
g sh
e en
dure
d?
How
goo
d is
God
r
KIE
SS
LIN
G
If y
ou a
sk m
y bi
rth
mot
her
toda
y, s
he w
ill
say
th
at I
am a
b
less
ing
to
her
. If
onl
y ev
eryo
ne
wo
uld
rea
lize
th
e tr
uth
that
ever
y
child
is a
gif
t!
Cas
e 1:
08-c
v-10
066-
JLT
D
ocum
ent 1
43-2
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File
d 08
/09/
11
Pag
e 2
of 3
0003
63
eyin
g be
en a
dopt
ed a
s a
baby
, I d
idn'
t kno
w v
ery
muc
h ab
out m
y bi
rth
mot
her.
At a
ge
181
requ
este
d m
y "n
on- i
dent
ifyin
g in
form
atio
n' a
nd le
arne
d a
seri
al
rapi
st h
ad r
aped
her
at k
nife
poin
t Thi
s w
as
how
I w
as c
once
ived
. I r
emem
ber
feel
ing
ugly
and
unw
ante
d, a
nd w
onde
red,
"W
ho w
ould
eve
r lo
ve m
e?"
Gro
win
g up
, I n
ever
rea
lly th
ough
t ab
ortio
n ap
plie
d to
rny
life
, but
then
in o
ne
mom
ent,
it no
t onl
y ap
plie
d to
my
life,
it
had
to d
o w
ith m
y ve
ry e
xist
ence
. I h
eard
th
e ec
hoes
of a
ll th
ose
peop
le w
ho w
ould
say
: "W
ell,
exce
pt in
cases
of r
ape.
..."
or
Isped
ally
in ca
ses o
f rap
e....
" I
real
ized
th
ey w
ere
talk
ing
abou
t me—
abou
t my
life—
and
I fe
lt as
if I
was
goi
ng to
hav
e to
ju
stify
my
own
exis
tenc
e an
d pr
ove
to th
e w
orld
that
I s
houl
dn't
have
bee
n ab
orte
d.
I th
ough
t of m
y bi
rth
mot
her,
but
ne
gativ
e im
ages
wou
ld b
omba
rd m
y m
ind:
'She
mus
t hat
e m
e. m
et ne
ver
goin
g to
wan
t to
mee
t me.
She
pro
babl
y w
ante
d to
abo
rt m
e.1
But
som
ehow
I de
term
ined
that
, if I
cou
ld ju
st m
eet h
er
and
hear
that
she
did
n't w
ant t
o ab
ort
me,
then
I c
ould
feel
goo
d ab
out m
ysel
f, I
coul
d fe
el s
afe,
and
I w
ould
n't h
ave
to
feel
as
if I
was
stil
l a ta
rget
At 1
9, a
fter
a
judg
e ap
poin
ted
a co
nfid
entia
l in
term
edia
ry,
I -fin
ally
hea
rd fr
om m
y bi
rth
mot
her.
She
was
thri
lled
at th
e pr
ospe
ct o
f mee
ting
me,
wri
ting:
1 T
he G
allu
p O
rgar
fiza
tion
, T
he G
allu
p P
olk
Pub
lic
Op
inio
n 1
99
6 (
Wil
min
gton
. Del
.: S
chol
arly
R
esou
rces
, Inc
., 19
93),
p. 1
13.
2 Ju
lie
Mal
cim
aa, K
athy
Hof
fmas
ter,
Th
e 'H
ard
C
ases
' of A
bort
ion:
A P
ro-li
fe R
espo
nse,
Fa
mily
R
esea
rch
Cou
ncil
, Was
hing
ton,
DC
, (20
00),
p.7
.
3 M
leli
sa M
. Hol
mes
, M.D
.. et
al.,
"R
ape-
rela
ted
Pre
gnan
cy. E
stim
ates
and
Des
crip
tive
C
hara
cter
isti
cs f
ront
a N
atio
nal S
ampl
e of
W
omen
," A
mefic
an J
ourn
al o
f O
bst
etr
ics
and -
G
yneco
logy
175,
Iss
ue 2
(A
ugus
t 199
6), p
.320
.
4 D
avid
C. R
eard
on. J
ulie
Mak
imaa
, and
Am
y S
obie
, 'V
ictim
s a
nd
Vic
tors
: S
pe
aki
ng
Ou
t A
bo
ut
Th
eir
Pre
gn
an
de
s, A
bo
rtio
ns,
an
d C
hild
ren
Re
sulti
ng
fro
m S
exua
l Ass
ault,
' (Sp
ring
fiel
d, II
I.: A
corn
P
ubli
shin
g, 2
000)
, p.2
0.
5 Ib
id.,
p2
2.
6 M
akim
aa,
op
. ci
t., p
.9.
7 E
llio
t In
stit
ute,
'Wom
en a
t R
isk
of P
ost-
Abo
rtio
n T
raum
a,"
(Spr
ingf
ield
, III
.: S
prin
gfie
ld R
ight
to
Lif
e, 1
090)
, p.S
.
LO
CA
L I
NF
OR
MA
TIO
N A
ND
A
SS
IST
AN
CE
AR
E A
LS
O A
VA
ILA
BL
E:
Eitt
ed b
y M
arth
a E
Sch
iebe
r •
De
sig
n b
y R
ight
Chk
Cre
ollv
o
Her
itage
Hou
se 7
6, In
c.
919
$. M
ain
St.
Sno
wfl
ake,
AZ
859
37
2002
Eas
ton
Pub
lish
ing
Com
pany
, Inc
. 02
005
Her
itag
e H
ouse
'76.
Inc
. A
ll r
ight
s re
serv
ed.
Her
itag
e H
ouse
is n
ow th
e ex
clus
ive
prod
ucer
an
d di
stri
buto
r of
Con
ceiv
ed in
Rap
e
Rep
rintS
and q
uan
tity
dis
counts
avai
lable
:
1400458
-30
40 o
r w
ww
.hh
76.c
om
Item
no.
952
CR
(old
no.
540)
1-5
-20
05
_aj,
Deare
st' ie
eSecca,
llopi
ng b
y no
w th
at th
e sh
ock
of fi
ndin
g ou
t all
the
deta
ils o
f you
r bi
rth is
forg
otte
n. Fa
r tha
t was
not
re
ason
eno
ugh
to g
ive
som
ethi
ng u
P as
bea
utifu
l as
you
wer
e—no
thin
g as
pre
ciou
s as
a b
aby!
I ca
rrie
d yo
u fa
r nin
e m
onth
s and
wen
t thr
ough
the
birt
h fe
elin
g no
one
love
d m
e, b
ut I
expe
rknc
e d lo
ve se
eing
you
w
ere
so p
elfe
ct a
nd p
retty
. All
thes
e ye
ars I
had
no
thin
g of y
ou, n
o pi
ctur
e, n
othi
ng e
ven
sayi
ng y
ou
wer
e pa
n of
me.
Jus
t the
mem
ory
of c
anyi
ng a
bab
y th
a t I
hop
ed o
ne d
ay w
ould
try
to fi
nd h
er re
al m
othe
r as
I wan
ted
to k
now
my
baby
, I a
lway
s lov
ed y
ou
in
my
hear
t. Yo
u w
ere
alw
ays w
ith m
e in
my
thou
ghts
, m
ostly
in J
uly.
... I
t see
ms l
ike
a lif
etim
e, I
know
. W
hen
I was
sick
two
year
s ago
I th
ough
t I w
ould
ne
ver g
et to
kno
w m
y lit
tle g
irl..
.. It'
s bee
n a
long
th
ree
wee
ks, L
ooki
ng fo
rwar
d to
our m
eetin
g. I
didn
't kn
ow h
ow to
exp
ress
my
inne
r fee
lings
. IT'
S SO
GRE
AT—
IT'S
ALW
AYS
BEEN
MY
DRE
AM
. I A
M S
O II
APPY
, I
AM
CRY
ING
! A
love
that
ate
at m
e fo
r nin
etee
n ye
ars,
my
daug
hter
at l
ast.
With
love
, yo
ur M
om,
Joan
n
Cas
e 1:
08-c
v-10
066-
JLT
D
ocum
ent 1
43-2
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File
d 08
/09/
11
Pag
e 3
of 3
0003
64
•
XlItO
RIR
,416.1■,1
41
. tR
ilt MR
•• If, RW
IIP 04
NtR
, 010'0101TR
RO
N-a, tat
1111111it, tmt
0
/WA
R F
IR**
on Iv
o* 31,11%
1Now
siti •
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Volume 1, Pages 1-76, Exhibits 1-8
UNITED STATES DISTRICT
FOR THE DISTRICT OF MASSACHUSETTS
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ELEANOR McCULLEN, et al.,
Plaintiffs,
v. No. 1:08-cv-10066-JLT
MARTHA COAKLEY, as Attorney
General for the COMMONWEALTH
OF MASSACHUSETTS, et al.,
Defendants.
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Complete Caption on Next Page
DEPOSITION OF ELEANOR McCULLEN
Wednesday, May 11, 2011, 9:00 a.m.
Office of the Attorney General
100 Cambridge Street, 12th Floor
Boston, MA 02114
-----Reporter: Carol A. Pagliaro, CSR/RPR/RMR-----
FARMER ARSENAULT BROCK LLC
www.fabreporters.com
50 Congress Street, Suite 415
Boston, Massachusetts 02109
617.728.4404 ~ Fax 617.728.4403
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1 - - - - - - - - - - - - - - - - - -2 ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA,3 GREGORY A. SMITH, CARMEL FARRELL, ERIC CADIN,4 CYRIL SHEA, DONALD GOLDEN, NANCY CLARK,5 MARK BASHOUR, and NOREEN BEEBE,6 Plaintiffs,7 v. No. 1:08-cv-10066-JLT8 MARTHA COAKLEY, as Attorney General for the9 COMMONWEALTH OF MASSACHUSETTS; DANIEL F.10 CONLEY, as District Attorney for Suffolk11 County; MICHAEL W. MORRISSEY, as District12 Attorney for Norfolk County; MARK G.13 MASTROIANNI, as District Attorney for14 Hampden County; and JOSEPH D. EARLY, JR.,15 as District Attorney for Worcester County16 Defendants.1718 - - - - - - - - - - - - - - - - - -192021222324
3
1 A P P E A R A N C E S23 LAW OFFICE OF MICHAEL J. DePRIMO4 By Atty. Michael J. DePrimo5 778 Choate Avenue6 Hamden, CT 065187 203.893.9393 ~ Office/Fax 203.281.14968 [email protected] Counsel for the Plaintiffs1011 OFFICE OF THE ATTORNEY GENERAL12 By Kenneth W. Salinger, AAG13 -and-14 By Gabrielle Viator, AAG15 100 Cambridge Street, 11th Fl.16 Boston, MA 0211417 Mailing: One Ashburton Place, 18th Fl.18 Boston, MA 0210819 [email protected][email protected] Counsel for the Defendants.2223 Also present: Shelley Barron24
4
1 I N D E X2 EXAMINATION OF: PAGE3 Eleanor McCullen4 By Atty. Salinger...................5, 66, 725 By Atty. DePrimo.......................55, 6967 E X H I B I T S8 NO. PAGE9 1 Unfolded pamphlet..........................15
10 2 Watch Me Grow pamphlet.....................1611 3 Pamphlet that folds into fours.............1912 4 Two-sided card.............................2513 5 Photograph of sign.........................3814 6 Photo of Planned Parenthood building on15 Commonwealth Avenue........................4516 7 Picture of Planned Parenthood from front17 of building................................4718 8 Photo of Planned Parenthood from19 Alcorn Street side.........................512021222324 (Exhibits retained by Atty. Viator.)
5
1 P R O C E E D I N G S2 ELEANOR McCULLEN, sworn3 EXAMINATION4 BY ATTY. SALINGER:5 Q. Good morning. I'm Ken Salinger. We just6 met. As you know, I'm going to be asking you a7 series of questions this morning.8 Why don't we start with asking you to9 state your name on the record.10 A. Eleanor McCullen.11 Q. Ms. McCullen, you are one of the plaintiffs12 in this lawsuit; is that correct?13 A. Yes.14 Q. The questions I'm going to ask you this15 morning will all deal with the time period after16 Massachusetts changed the Buffer Zone Law, so after17 the middle of November 2007.18 A. Perfect. Yes.19 Q. How often do you go to the Planned20 Parenthood Clinic in Boston?21 A. I go twice a week, Tuesday and Wednesday22 mornings, from 7 a.m. to 11 a.m.23 Q. Why do you go those days and those times?24 A. That works with my schedule. We go from
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1 7:00 to 11:00 because that is the most -- I guess2 the busiest time of the day, and then Tuesday and3 Wednesdays works with my other activities.4 Q. You said "we go," who are you referring to5 when you say "we"?6 A. Our group. Like I work with a woman by the7 name of Mary, so we -- but if you want me to just8 say I, either one, but I think -- we work together.9 Q. What is Mary's last name?
10 A. O'Donnell.11 Q. Do you and Mary typically go together on12 Tuesday and Wednesday mornings?13 A. Generally, yes.14 Q. Do other people cover other days?15 A. Yes.16 Q. How is this organized, this schedule? Who17 does that organizing?18 A. Well, probably Bill Cotter would organize19 that.20 Q. Who is Bill Cotter?21 A. He is the, I guess you would call him, the22 president of Operation Rescue.23 Q. Could you, in a few sentences, explain what24 Operation Rescue does?
7
1 A. Yes. We greet young ladies and gentlemen2 that are contemplating abortion and we offer help3 and hope.4 Q. Do you ever do this at the Women's Health5 Clinic in Brookline?6 A. I never have.7 Q. Have you ever gone to that clinic?8 A. No, I have not.9 Q. How about the Planned Parenthood Clinics in
10 Worcester or Springfield, have you ever gone there?11 A. No, I have not.12 Q. How do you go about offering help and hope13 to young ladies outside of the clinic in Boston?14 A. Well, I begin by saying good morning, and I15 could have two different ways. I could -- may say:16 Good morning, may I help you this morning? Good17 morning, may I give you my literature? Is there18 anything I can do for you? I'm available if you19 have any questions.20 And then if I have a little more time I21 would say, Perhaps we can talk a little bit before22 you rush into anything here, let's just talk a23 couple of minutes, so my voice is just the way I'm24 saying it now, just I'm there if you have any
8
1 questions, is there anything I can do for you, there2 is help available.3 Q. Where are you when you initiate these4 interactions, on the sidewalk usually?5 A. Yes, on the sidewalk.6 Q. We will look at a few pictures later to pin7 it down, but I know you are familiar with the area8 right outside the clinic.9 A. Yes.
10 Q. If one faces the front door of the clinic,11 Alcorn Street is immediately to the left; is that12 correct?13 A. If you are facing -- yes.14 Q. Do you often or typically try to stand or15 position yourself on the other side of Alcorn Street16 on that corner near the supermarket or do you go17 somewhere else?18 A. Well, every day is different, and I could19 be on the other side of Alcorn, you are right, I20 could be standing in the center in the street facing21 the entrance, or I could be on the other side of the22 buffer zone, so there is no particular place that I23 have. It's wherever I'm standing, and if I see24 someone approaching, I try to get to them.
9
1 Q. How do you decide who to speak to?2 A. Let's see. Generally you can pretty much3 guess who is coming.4 Q. To go to the clinic?5 A. To go to the clinic. Because you never see6 anyone smiling or walking quickly. You generally7 know, this is general of course, you generally see a8 person, a woman, or two women, or a couple walking9 slowly, heads are down, little sadness, so I can10 pretty -- I have been doing this 11 years, so I can11 pretty much detect that, but you can't always be12 sure, obviously.13 Q. Of course.14 A. I would say that would have to -- that is15 what I'm looking for, someone that looks sad, I16 guess, yes.17 Q. So from time to time when you say something18 like, Good morning, may I help you this morning,19 will people start to speak with you, stop and speak20 with you?21 A. Yes, they will, especially if I say, Can I22 help you? Their question would be, How can you help23 me? And then I will have a dialogue with them.24 Q. What is the typical dialogue? What will
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1 you discuss?2 A. After that point?3 Q. After that point.4 A. Well, I can certainly help you. Tell me5 why you are here today. I can tell you really don't6 want to be here, but you met me, and so tell me what7 is happening in your life, what can I help you with?8 And they may tell me a couple of things, and I say,9 Well, you know what I'm thinking, we have a Safe
10 Center. We could go there and we can help you with11 what you just told me about, and first of all, we12 will get the pregnancy test to make sure you are13 pregnant, and then we will hear your story, and we14 will show you how we can help, and if I get -- then15 many times they will come to the Safe Center.16 Q. Many times? How often? How frequently?17 A. Well, I'm a grandmother, and I have a18 personality that they trust me, so I would say --19 how many times would you say or just --20 Q. In a typical month say how often might21 somebody --22 A. I'll say once a week.23 Q. Once a week?24 A. It could be. It is a conservative -- yes.
11
1 Q. And obviously some weeks it might be that2 nobody goes with you and some weeks two, or three,3 or four might go with you?4 A. Yes.5 Q. The Safe Center, is this a woman's place?6 A. Yes. I work with A Woman's Concern.7 Q. A Woman's Concern, I'm sorry.8 A. That is a pregnancy help center and that is9 where I would go.10 Q. Typically once a week or so?11 A. I would say once a week, yes.12 Q. What is A Woman's Concern?13 A. There are four centers and we offer14 pregnancy help. We offer parenting classes, we15 offer financial assistance, we help the young women16 get -- if they need a WIC. We try to help with17 apartments. It's generally pregnancy help, as much18 as we can do, until they can get on their feet, so19 they feel, the young couples -- the young women feel20 they have some support, that they are not alone.21 We give them that feeling of22 consolation, and help, and hope so they don't feel23 like -- Wow, I'm not alone. We give them courage.24 Q. And you refer to a WIC, is that the State's
12
1 Women's, Infants', and Children's program?2 A. Yes, I guess that is. Yes.3 Q. So, I believe I was asking, just to be4 clear, when you referred to a WIC, you were having5 in mind the state-funded Women, Infants, and6 Children program?7 A. Yes.8 Q. When you are on the sidewalk waiting to9 speak with folks, do you have a sign with you?
10 A. I do not, I do not.11 Q. Do you have any sort of indication to12 identify you in any way or you just stand and wait13 to speak?14 A. Yes.15 Q. The latter?16 A. Yes.17 Q. Do people sometimes walk on by not wanting18 to speak to you?19 A. Yes.20 Q. What do you do when that happens?21 A. Can't do much, just have to let it go.22 Q. Wait for the next person who might speak23 with you?24 A. Yes.
13
1 Q. Do you ever display signs when you are2 outside the clinic?3 A. I do not.4 Q. When you do manage to have conversations5 with people, how long might they last there on the6 sidewalk?7 A. Typically I would say two minutes if they8 stop, if a young lady would stop and say, How can9 you help? But then if they are very interested,10 sometimes I can speak 15 minutes or 20 minutes,11 because I'm trying to assure them that there is12 help, so that might take a little longer.13 Q. How often do you manage to hand literature14 to someone that they accept?15 A. How many pamphlets do I hand out?16 Q. Yes.17 A. Probably, oh, I'll say, 15 to 20.18 Q. In a day?19 A. In a morning, yes.20 Q. You talked about going typically with Mary21 O'Donnell. How do you and she, the two of you,22 coordinate when you are there?23 A. Well, we were standing in separate spots,24 and we each have a different personality, so we each
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1 bring our personality to the young lady, so Mary may2 begin and then call me over to, you know, bring my3 personality to the situation.4 Q. Do you and she typically stand on the same5 side of the buffer zone or on opposite sides?6 A. We would be on opposite sides.7 Q. So the main sidewalk is there on8 Commonwealth Avenue. She would be on one side so9 people approaching from one side she could speak
10 with, you would be on the other so people11 approaching from the opposite way you could speak12 with?13 A. Yes.14 Q. Do you keep any sort of records of your15 work at the clinic or in front of the clinic?16 A. I do not. You mean following up with17 people, records of people I've talked to, that type18 of thing?19 Q. Any kind of record at all.20 A. Actually it may surprise you, but I don't.21 Q. Do you report to Bill Cotter or others at22 Operation Rescue when you have had a successful23 interaction with someone?24 A. Yes.
15
1 Q. Are you familiar with the Operation Rescue2 website?3 A. I'm not. I don't do the computer.4 Q. Do you have any knowledge about what5 Operation Rescue does with the information that you6 provide when you have a successful interaction?7 A. Well, I think Bill might type it in and8 send it out as an encouragement to others, yes.9 Q. Ms. McCullen, I'm going to have the Court10 Reporter mark, and then I'm going to show to you, a11 few documents that I believe you produced through12 your lawyer and ask you a few questions about them.13 A. Sure.14 ATTY. SALINGER: So let's mark this as15 Exhibit 1.16 (Document marked as Exhibit 117 for identification.)18 Q. Ms. McCullen, this document that is marked19 as Exhibit 1, it's two-sided. It appears to be a20 color copy of something that is a tri-fold pamphlet.21 A. Yes, it is. Yes.22 Q. Have you seen this tri-fold pamphlet23 before?24 A. Oh, yes.
16
1 Q. Is this one of the pieces of literature2 that you sometimes hand out?3 A. Yes.4 Q. Where do you get the pamphlet from?5 A. When I go to A Woman's Concern I pick up6 the pamphlets.7 Q. How many of these pamphlets, the A Woman's8 Concern pamphlet, do you hand out in a typical9 morning or week?10 A. I would say maybe 15, 15 a day.11 Q. And again, just to be clear, this is along12 the sidewalk outside the Planned Parenthood Clinic13 in Boston?14 A. Yes.15 Q. You can put that aside and let's mark the16 next one as Exhibit 2.17 (Document marked as Exhibit 218 for identification.)19 Q. Ms. McCullen, do you know what the document20 marked as Exhibit 2 is?21 A. Yes. Typically what I would do is take22 Document No. 1, and this Document No. 2 is also a23 foldout, it comes all the way out, and it's all24 folded, and I would tuck the Document No. 2 into
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1 Document No. 1, and that is what I would present.2 Q. So you would hand them together, one inside3 the other?4 A. May I give my information today, yes.5 Q. If someone says yes, you will give it to6 them?7 A. Yes.8 Q. If they say no or say nothing and just walk9 on by, you don't give it to them?10 A. No.11 Q. Is this also a pamphlet that you pick up at12 A Woman's Concern?13 A. Oh, no, I order these myself.14 Q. Where do you order them from?15 A. Let's see. I'm going to turn it onto the16 back, and see, there is a telephone number on the17 back.18 Q. Little One Publisher.19 A. Oh, yes, did you find it? That is it.20 Q. The two pieces of literature, one tucked21 inside the other, have you been handing these out22 outside the Planned Parenthood Clinic since November23 2007?24 A. Yes.
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1 Q. Pretty much every morning you are there?2 A. Yes.3 Q. Do you know, does Mary O'Donnell hand out4 the same literature when she is there with you?5 A. Mary hands out her own information. She6 has another -- something similar to this.7 Q. And you've seen -- go ahead.8 A. And I think she even has something9 different than this. She hands out something
10 different.11 Q. Just to be clear, when you said "something12 similar to this," you were holding up Exhibit 2, and13 when you said "something different from this," you14 were holding up Exhibit 1?15 A. Right. Her pamphlets are a little16 different that mine.17 Q. You have seen Mary hand her pamphlets to18 people on the sidewalk outside of Planned Parenthood19 in Boston?20 A. Yes.21 Q. How frequently do you see Mary hand22 literature there?23 A. I would say maybe about the same. I'll say24 15.
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1 Q. Fifteen times each morning that she's2 there?3 A. Yes.4 Q. I just have a couple more to see if you can5 identify. Let have this one marked as Exhibit 3.6 (Document marked as Exhibit 37 for identification.)8 Q. Ms. McCullen, do you recognize what has9 been marked as Exhibit 3?
10 A. Yes.11 Q. What is that?12 A. This is another brochure that we would13 distribute.14 Q. Is this just a two-sided card or is this15 folded up when you hand it out?16 A. It's folded into -- yes, it's folded into17 four, so yes, and it opens up into each side, one18 and then the other side, so it's a little folded19 pamphlet.20 Q. So this is also a pamphlet that you would21 hand out outside the clinic?22 A. Yes.23 Q. Where do you get this from?24 A. Bill Cotter would give this to me.
20
1 Q. Do you hand this out at the same time as2 the other literature? When do you use this one,3 Exhibit 3?4 A. Exhibit No. 3 I would use with the Watch Me5 Grow, which is Exhibit No. 2, and then Exhibit No.6 1 -- these are -- to me they are both the same, they7 offer help, so one time I might do Exhibit 3 and8 another Exhibit 1, but it's always tucked into9 Exhibit 2.
10 Q. Is this also a piece of literature that you11 have been handing out outside the Boston clinic12 since November of 2007?13 A. Yes.14 Q. How frequently does someone take this piece15 of literature from you?16 A. Well, it would be still -- if I'm doing --17 let's see. If I'm doing 2 and 3, that would be 1518 times a day, so the 1 and 3 are interchangeable, so19 it's still the 15 handouts.20 Q. Fifteen handouts of some kind and it may be21 a mix of any of these pieces?22 A. Yes.23 Q. Are there other pieces of literature that24 you hand to people outside the Boston clinic as
21
1 well?2 A. Not that I'm thinking of right now. This3 would be generally what I would have. I would have4 maybe a Spanish piece, something with the Spanish5 language that would offer help.6 Q. Does anything else come to mind?7 A. I also give my telephone number. I have a8 small card and it has my name, Eleanor, and it has9 my telephone number, and on the back it has a little10 message, and so I always give my telephone number.11 Q. That is basically a business card?12 A. It's a business card, yes. So those would13 be the three things.14 Q. So the card with your name and number and15 the message, this is something you will give to16 people outside the clinic in Boston?17 A. Yes.18 Q. When do you give that to people, when you19 get to a certain point in a conversation or --20 A. No, I actually give it all the time. It's21 always part of my little pamphlet.22 Q. Why do you give people your name and your23 telephone number?24 A. Well, just in case they -- they took the
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1 information and maybe they didn't look interested in2 calling me, I mean talking to me, but then they have3 my number, so they can call me for any particular4 reason, either -- whatever they want to speak about.5 Q. Do women, in fact, call from time to time6 because you gave them your card?7 A. Yes, yes.8 Q. Describe to me the kind of interactions you9 typically have if somebody calls you after you have
10 spoken to them on the sidewalk.11 A. Well, unfortunately, I have the calls that12 come in crying, saying I can't believe I didn't13 listen to you, I went ahead with the abortion, and14 now I'm depressed, so I get that type of call, which15 is fine, I'm not judgmental, so I can speak to that16 particular person.17 And then I get the call, yes, I did get18 your information and yes, I still do need help, and19 can we still go to your Safe Center?20 Those would be two, and then I just had21 a call, they called me, they had my number, I forgot22 about them, but they just had their baby, and the23 father called saying, I had to call you and say the24 baby just came this morning, a baby boy, so I get
23
1 those happy calls too, so I guess it ranges from2 sadness, joy, and then still needing help.3 Q. The last call you were describing, the one4 you just got, this was a woman you had spoken to5 some time ago on the sidewalk?6 A. Right, and she had the information but7 never called for help, and I just forgot about it,8 and this was a father that called me exuberant, and9 he said, My wife said you have to call Eleanor and10 just to tell her that the baby is here, and he said,11 Thank you. He said, My son is here. So I guess a12 range of that type of call.13 Q. And if you had spoken to a woman on the14 sidewalk and she calls you sometime thereafter with15 the number on your card saying she does want help,16 what do you do then?17 A. Well, let's see. I could have her come to18 my home, we could talk.19 Q. Where is your home?20 A. It's in Newton, so it's close by. Or I21 could say, Well, if you would like we could meet at22 our Safe Center, I'll meet you there.23 Q. Where is that located?24 A. I would probably meet her either in
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1 Dorchester or Revere.2 Q. Okay. Whichever is more convenient for3 her?4 A. Yes. And she probably would like the5 ultrasound, so wherever they are doing ultrasounds6 that week, which would be either Dorchester or7 Revere, I would meet her there. I always stay with8 my mothers to keep them comfortable, so I meet them9 there or my home and see if they want to take it
10 further, if they want to go further.11 Q. You said sometimes women you have spoken12 to, given your card to, they call you up and say, I13 have had an abortion, I'm depressed?14 A. Mm-hmm.15 Q. What do you do in those circumstances?16 A. There again I can speak sometimes just on17 the telephone and/or I say come to my home, and18 either way, if they are at my home or on the19 telephone, I speak about the mercy of God, and I20 tell them I understand you are upset in this right21 now and, but I pray actually, and I tell them that22 the Lord doesn't want them to be depressed, that we23 have to proceed on, so I give them hope in their24 sadness, in their adversity. I let them know that
25
1 there is mercy and forgiveness, and now proceed,2 don't get stuck in your depression. That would be3 generally what I would say.4 Q. You said you pray; do you pray with them,5 do you pray for them, sometimes --6 A. No, I pray with them, because they want to7 hear that they are okay, they want to know that it's8 okay, and I assure them of that at that point.9 Q. I think you said sometimes you might have
10 Spanish language literature. Let's mark this as11 Exhibit 4 and see if this is what you had in mind.12 (Document marked as Exhibit 413 for identification.)14 Q. Ms. McCullen, do you recognize what has15 been marked as Exhibit 4?16 A. Yes.17 Q. What is that?18 A. This is a little brochure or a little19 paper. It's just one little card like this.20 Q. It's a two-sided card?21 A. Yes, it doesn't fold, and it offers help at22 the centers in Spanish.23 Q. So the side that has been marked with the24 question "embarazada" has four locations or phone
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1 numbers, Dorchester, Revere, Lawrence, Worcester at2 the bottom; do you see that?3 A. Yes.4 Q. Those are the four A Woman's Concern5 locations?6 A. Yes. I don't know. I guess Worcester is A7 Woman's Concern. It may be -- it's a pregnancy help8 center. It may have a different name than A Woman's9 Concern.10 Q. Do you speak Spanish?11 A. No.12 Q. So if you are communicating with a woman on13 the sidewalk outside the clinic who obviously speaks14 Spanish, you will ask her to take one of these?15 A. Yes.16 Q. How often in a typical day do you hand out17 one of these Spanish language cards?18 A. Not often. Maybe I'll say once a week,19 maybe -- I'll say once a week.20 Q. Where do you get these cards?21 A. Let see. That's a good question. Probably22 this is from Bill. This would be from Bill Cotter.23 Q. How often do you speak with Bill Cotter24 about your work outside the clinic?
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1 A. Once a week.2 Q. Do you talk to him on the phone or in3 person?4 A. On the phone.5 Q. Do you have a regular time to call or...6 A. No.7 Q. And does he usually call you or you call8 him?9 A. I would say 50-50.
10 Q. What do you and he talk about?11 A. Well, unfortunately, he lost his father,12 and so we talk about his family, and then we will13 talk about, well, what happened when you were14 outside Planned Parenthood this week, so it's kind15 of work-related and family talk.16 Q. Could you, in your own words, describe what17 you are trying to accomplish with your work outside18 the Planned Parenthood Clinic in Boston?19 A. Well, I'm trying to, first of all, help the20 women. I'm there for the women first.21 Q. Primarily --22 A. Primarily for the woman first.23 Q. Primarily for pregnant women?24 A. Yes, I'm there for pregnant women that are
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1 scared, and they feel that abortion is the answer2 for their particular situation, and they are there3 because they are a by-product of this society, and4 as I said a minute ago, they are frightened, for5 various reasons they find themselves in front of6 Planned Parenthood, and in my 11 years of working7 there, I have never met anyone after we offer help8 that really wanted to go ahead with the abortion.9 So I'm there to stop the woman, ask her10 just to wait, show her that there is help, that she11 doesn't have to be afraid, and as I said earlier, I12 try to put my arms around her with love and gently13 guide her and tell her how we can help her, so she14 is my primary concern, because I also worked with15 women who have had abortion and I know how difficult16 that is, so I'm trying to help her as she is making17 her decision. This is huge, so I'm there primarily18 to offer hope and help to the woman.19 Q. Are you primarily trying to speak with20 women who are going to Planned Parenthood to21 consider having an abortion as opposed to women who22 are going to Planned Parenthood for some other23 service or care?24 A. Definitely. I know Planned Parenthood does
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1 other things. Primarily they do abortion, so yes,2 I'm there for the woman who is inclined toward3 abortion.4 Q. From time to time do you succeed in5 persuading a woman who is going to Planned6 Parenthood not to have an abortion and instead give7 birth to their child?8 A. Yes.9 Q. How many times do you think that has10 happened in the past year?11 A. In the past year?12 Q. Yes.13 A. As you mentioned earlier -- I don't keep a14 record. I don't really know.15 Q. What is your best memory?16 A. You want me to give a conservative answer?17 Q. Yes, based on your best memory.18 A. I would say -- in a year I would say 25.19 Q. So, for example, since November 2007 it has20 been two and a half years?21 A. I would say 25 conservatively speaking. As22 I said a minute ago, I really don't know, but if you23 would like me to give you an idea, I would say 25 a24 year.
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1 Q. And so sort of on average once every other2 week. So, of course, it doesn't happen with that3 regularity?4 A. Something like that.5 Q. Something like that, okay. So since6 November of 2007, two and a half times 25, that is7 maybe between 60 and 65 roughly. Is that a fair8 estimate do you think of the number of women during9 that time you have convinced through your
10 communications outside Planned Parenthood not to --11 A. This is after the buffer zone went into12 effect?13 Q. Yes.14 A. Yes.15 Q. 60 or more?16 A. I will say yes.17 Q. Women that you have spoken with and helped18 convince not to have an abortion?19 A. Yes, but if we are going with 20 a year,20 say 20, so it been 7, 8, 9, 10, so it would be a21 little more than 60. How are you arriving at the22 60?23 Q. Good point. I said two and a half; it's24 really three and a half, isn't it? My math is bad.
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1 A. So a little more, give or take.2 Q. So it's 25 a year and it's three and a half3 years since November of 2007; we are talking4 something more like 80 or more women?5 A. Yes.6 Q. And you have accomplished this primarily by7 standing on the sidewalk outside the clinic and8 offering to speak with people and giving them9 literature?
10 A. Yes.11 Q. On days when you are at the clinic do you12 see other people there trying in some way to13 communicate with clinic patients on the sidewalk,14 other than Mary?15 A. Yes. People will come by.16 Q. What do you observe them doing?17 A. Most they come by to pray, only a few like18 to speak, so if there are extra on the sidewalk,19 they would be tending to be praying.20 Q. And the people you observe praying outside21 the clinic, do they pray quietly?22 A. Yes.23 Q. Do you ever observe people, for example,24 praying into a microphone so that other people can
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1 hear their prayers?2 A. On Saturday, the second Saturday of every3 month, there is a large group of people that come to4 pray, and I believe he may use a microphone to pray5 so everyone could hear him. During the week,6 however, that would not be the case, and that is7 only the second Saturday of the month.8 Q. So during the week when you observe people9 outside the clinic praying, do you ever observe
10 those people holding signs while they pray?11 A. I'm going to say I don't know on that.12 Q. On the second Saturday of each month do you13 go to those ever?14 A. No, I do not.15 Q. Have you ever gone on the second Saturday16 to the clinic?17 A. Yes.18 Q. How many times do you think you have gone19 on the second Saturday?20 A. Twice.21 Q. Have either or both of those times been22 since the buffer zone law was changed in November of23 2007?24 A. I would say no to that as far as I can
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1 remember.2 Q. What do you recall observing when you went3 to the clinic on the second Saturday of the month?4 A. The people would be gathered in prayer,5 perhaps there would be two or three people speaking6 to women and men, and then also on the Saturday they7 have -- Planned Parenthood has the escorts, and I've8 noticed they would be taking the young women and men9 in, they escort them into the building.
10 Q. When you are outside the clinic on a11 typical Tuesday or Wednesday morning, are there12 escorts there as well?13 A. No.14 Q. So focusing again on the period for the15 past three and a half years since November 2007,16 have you ever seen anyone outside the clinic engaged17 in expressive activities other than prayer?18 A. Yes.19 Q. Tell me what you have observed?20 A. Well, occasionally somebody will come21 thinking they are helping, and they may express22 their feelings, and it's not helpful perhaps. I've23 seen that.24 Q. What have you seen? Tell me in more
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1 detail.2 A. Well, perhaps someone is getting too3 emotional about the situation here in front of4 Planned Parenthood and they may be counterproductive5 as far as their help is concerned.6 Q. What is it that they are doing that you7 fear might be counterproductive?8 A. They may be talking too loudly, they9 probably -- pretty much that is what it is, talking
10 just very loud and disruptive actually, but yes.11 Q. So the times where you have observed this,12 what kinds of things have these people said too13 loudly that you felt might be counterproductive?14 A. I don't know, but I know that it's a little15 bit over the top.16 Q. Are they speaking on the subject of17 abortion?18 A. Yes.19 Q. And you know that they are speaking in20 opposition to women having an abortion?21 A. Yes.22 Q. Where on the sidewalk have you observed23 people engage in that sort of conduct?24 A. Probably right in front of the building,
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1 outside, of course, the zone.2 Q. When you have observed people doing that3 right outside the building, where were you standing?4 A. Away from them.5 Q. For example, over on the corner in front of6 the supermarket?7 A. Yes.8 Q. When you were standing on the corner by the9 supermarket, you could hear the people in front of10 the building loudly saying the things you have11 described?12 A. Yes.13 Q. Do you recall any of these people holding14 signs while they were speaking loudly?15 A. I do not recall that.16 Q. Have you seen anyone outside the clinic in17 Boston handing out literature other than you and18 Mary O'Donnell?19 A. Yes.20 Q. Do you happen to know who any of them is?21 A. Let me think. Do you want a name?22 Q. If you know the names, yes.23 A. Well, there would be a gentleman by the24 name of Edward.
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1 Q. Do you happen to know Edward's last name?2 A. I do not. I should, but I don't.3 Q. Okay.4 A. Then there would be a woman by the name of5 Sandy.6 Q. Same question, do you know Sandy's last7 name?8 A. No.9 Q. Anyone else you happen to know by name10 handing out literature?11 A. If Bill Cotter came, he would hand out12 something. There is a woman by the name of Meredith13 that comes occasionally and they would perhaps hand14 out literature.15 Q. Do you know whether Edward, or Sandy, or16 Meredith get their literature either from Bill17 Cotter or from A Woman's Concern?18 A. Yes.19 Q. How do you know that?20 A. That would be the only place that they21 would be able to get the literature.22 Q. Have you seen the literature that they hand23 out?24 A. Yes.
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1 Q. Is it the same as the ones we have marked2 this morning?3 A. I would say that Exhibit No. 2, I'm sorry4 3, they would hand out probably No. 3.5 Q. So you have seen Edward, and Sandy, and6 Meredith hand out what we have marked as Exhibit 3?7 A. Yes.8 Q. And they have done that on the sidewalk9 outside the clinic in Boston?10 A. Yes.11 Q. What kind of literature have you seen Bill12 Cotter hand out outside the clinic in Boston, the13 same?14 A. No. 3.15 Q. How frequently do you see any of those four16 people handing out literature outside that clinic?17 A. How many days a week or how many times?18 Q. How many times, how many days a month,19 whatever is easiest.20 A. On, gosh. Let's see here. Why don't we21 say five times a day -- or five times a week. They22 come each different -- they are not dependable as23 far as being there every time, every day, so...24 Q. How frequently do you see them there?
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1 A. Maybe once week or once every other week.2 Q. And that is true of each of these four3 people?4 A. Yes. Well, definitely I would say once a5 week or once every other week, yes.6 Q. When you do see them, at least one of the7 things that they are doing is offering and, in fact,8 handing out literature?9 A. Yes.
10 Q. Do you see Bill Cotter doing anything else11 outside the clinic other than handing out12 literature?13 A. Bill might hold a sign. I've seen Bill14 have signs offering help, and pretty much, let's15 see, it would say pregnancy help and it would give a16 telephone number at the bottom.17 Oh, yes, that would be it.18 Q. Okay. So let's mark this as an exhibit.19 (Document marked as Exhibit 520 for identification.)21 Q. So Exhibit 5 is a photograph of a sign that22 says at the top, Pregnant with a question mark.23 There is a picture of a woman's face, then it says,24 Free help for mother and baby, there's a phone
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1 number, and then it says awomansconcern.org; do you2 see that?3 A. Yes.4 Q. So does Bill Cotter from time to time hold5 a sign like this outside the clinic?6 A. Yes.7 Q. Have you seen other people outside the8 Boston clinic holding a sign like this?9 A. I don't know.
10 Q. Describe physically how Bill holds the11 sign. Is it on the ground at his feet as in this12 photo or does he do something else with it?13 A. Well, sometimes he will tie it to the -- if14 there is a pole there he might do that, or he will15 hold it.16 Q. Does he ever have it on a stick?17 A. I don't know.18 Q. Does Bill Cotter usually have a sign like19 this when he is outside the Boston clinic?20 A. Yes.21 Q. What about Edward, does he hold signs?22 A. No.23 Q. Does Sandy?24 A. No.
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1 Q. How about Meredith?2 A. No.3 Q. Do you, from time to time, see anybody4 other than Bill Cotter with a sign outside the5 Boston clinic?6 A. My answer to that would be no. I can't7 recall.8 Q. Ms. McCullen, in your disclosures in this9 case you mentioned the name of Richard Reagan or
10 Reagan. Is it pronounced Reagan or Reagan?11 A. Reagan.12 Q. Who is Richard Reagan?13 A. Well, he comes occasionally. Maybe once14 every six months he will come.15 Q. He will come and be outside the clinic?16 A. And he is a prayer person.17 Q. So he will stand outside the clinic and18 pray?19 A. Yes.20 Q. Does he have a favorite location to do21 that?22 A. He will probably stand -- if you are23 looking at the entrance of Planned Parenthood, he24 would stand on the right.
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1 Q. On the sidewalk to the right?2 A. Yes.3 Q. Are you aware of anyone other than you and4 Mary O'Donnell and Bill Cotter who try to engage in5 counseling on the sidewalk outside the Boston6 clinic?7 A. The prayer people, if someone would happen8 to come up to them, they may say something to them,9 but that is not their chief purpose to be there, so10 they may begin to say something simply because the11 opportunity presented itself, so they can stop their12 prayer.13 Q. Is that something that you have observed14 from time to time?15 A. Yes.16 Q. Are you aware of anybody else who, say, on17 other days of the week goes to the Boston clinic and18 tries to engage in counseling on the sidewalk?19 A. Every once in a while there is a woman by20 the name of Kathy that will come by.21 Q. How do you know Kathy?22 A. I don't really know her. She just will23 walk down sometimes. She is on her way to the gym24 and she will say, you know, I'll stand here with you
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1 for a little while, so she may say something, yes.2 Q. How frequently does Kathy stand with you on3 the sidewalk?4 A. She might come every week for three weeks5 and then we will not see her again for, you know,6 three months, but when she comes it would be once a7 week for about an hour and a half, but then, as I8 say, she would be called undependable.9 Q. When she is with you on the sidewalk, what
10 does she do?11 A. She speaks sometimes a little over the top,12 so I have to ask her to be quiet.13 Q. What do you mean by that, "a little over14 the top"?15 A. Well, because we are out in the zone,16 obeying that law, we have to project our voice, and17 her voice comes over a little too loud, I think, so18 I've asked her just to be a little more gentle,19 although that is the situation where we do have to20 project our voice, even though we are not yelling it21 sounds as if we are, so I have asked her just to be22 a little more quiet.23 Q. So this is when somebody's walking down the24 sidewalk and you're reaching out to them and trying
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1 to start a conversation, is that when her voice can2 be a little too loud?3 A. Yes, especially if they are walking by and4 we have lost them because the zone is there, yes,5 she may go a little bit too much, yes, she may look6 a little too loud, but she doesn't mean that, but7 that is where we are at at this point.8 Q. When you said just now "if we have lost9 them because the zone is there," what did you mean10 by that?11 A. If I'm meeting someone and I have said,12 Good morning, how can I help you this morning, and13 we are walking now toward the clinic, and the person14 would say, they would say, Well, how can you help15 me, and I'm beginning to tell them, and now I get to16 the buffer zone, now they are continuing to walk,17 they have not recognized the yellow buffer zone, so18 I have a choice, I can either say, I can't walk any19 further with you because of the zone, which isn't20 always helpful because all of a sudden they look21 down and they think, Who is this person if she can't22 go further, so all of a sudden I'm like suspicious,23 or if I don't say that, if I choose to keep my24 voice, Well, I can help you at a Safe Center, now my
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1 voice is getting higher than I would prefer, because2 my best attribute is gentleness, and eye contact,3 and caring, so I can care about a person if they are4 looking at me like you are and talking in a normal5 voice like I am here for you, but once they cross6 the yellow line, I've lost some of my capability of7 projecting trust and hope, so you are kind of --8 there is a lose-lose.9 If I say, Stop, there is a line here,10 then they become suspicious of why can't you come11 across, like who are you, but if I raise my voice,12 then that comes across as not caring or maybe not as13 gentle as I would like to project.14 Q. I suppose some women you are speaking with15 may continue on because they don't want to talk with16 you, right?17 A. Yes, they continue on because they will18 say, I have an appointment, and I have lost them19 right at the yellow line just as I'm beginning to20 say, We could go to a Safe Center, just wait one21 day, don't rush, but they are continuing to walk,22 and they -- remember, they have an appointment, and23 so in just a few seconds, this is a very fragile,24 delicate kind of a conversation that I'm doing in
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1 seconds, so within a second, if they look at their2 watch, they have an appointment, and I've lost them,3 and it's heartbreaking, just it's -- it's very4 upsetting to see that they were interested but I had5 to stop.6 ATTY. SALINGER: Are you doing fine or7 do you want to take a short break?8 THE WITNESS: No, I'm fine. You decide9 yourself, though.10 ATTY. SALINGER: I just want to make11 sure before I plod on.12 THE WITNESS: Well, thank you.13 ATTY. SALINGER: Let's just take a look14 at a few photos.15 (Exhibit 6 marked16 for identification.)17 Q. Ms. McCullen, the photo marked as Exhibit18 6, what does this show?19 A. Well, this is the Planned Parenthood20 building on Commonwealth Avenue.21 Q. So Commonwealth Avenue is the wide street22 at the bottom of the photo; is that right?23 A. Yes.24 Q. And we can see the Planned Parenthood sign
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1 on the left side of the front of this building,2 right?3 A. That's right.4 Q. There's the little awning and that is where5 the entrance is?6 A. Yes.7 Q. And you can barely make out some yellow8 paint on the sidewalk that is the buffer zone line?9 A. Yes.10 Q. So when you were saying sometimes you stand11 facing the entrance to the right side on the12 sidewalk, that would be somewhere over on the side13 where the fire hydrant is, right?14 A. Yes.15 Q. And then we see a side street, there is a16 Star Market, and a parking and Osco sign on the17 building. That side of the street is Alcorn Street?18 A. Yes.19 Q. Where the supermarket is, that other side20 of Alcorn Street, that is also a place where you21 sometimes stand; is that right?22 A. Yes.23 Q. And there is a little piece, although you24 can't see it in this photo, but you know on the
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1 corner of Alcorn Street in front of Planned2 Parenthood there is a little piece of sidewalk that3 is outside the buffer zone there, as well; is that4 right?5 A. Where are you referring to the little bit6 of sidewalk?7 Q. Basically right next to the orange barrel8 in the photograph right on that corner. Do you ever9 stand there?
10 A. There is about two inches.11 Q. Do you ever stand there?12 A. Yes.13 Q. Do you ever talk to people while standing14 there?15 A. I prefer not to. It's such a small little16 spot. It's two inches-ish.17 Q. Not literally, but it's very small?18 A. Very small.19 Q. But do you sometimes have conversations20 while standing there?21 A. Yes.22 (Document marked as Exhibit 723 for identification.)24 Q. What does Exhibit 7 show?
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1 A. That is the picture of Planned Parenthood2 on Commonwealth Avenue.3 Q. So standing directly in front of the4 entrance itself?5 A. Yes.6 Q. Using this photograph, can you describe, if7 you're positioning yourself on the sidewalk to the8 right of the entrance, where do you like to stand,9 out near Comm. Ave., closer to the building, or do10 you move around?11 A. I would say I move around.12 Q. If you're standing there looking down the13 sidewalk watching for someone with whom you might14 speak, where do you do that from?15 A. I would say that this is where it gets a16 little difficult. If I'm standing to the right of17 the entrance, well, I'm looking both ways. I'm18 looking to the left across Alcorn and I'm looking19 down Commonwealth Avenue.20 Q. In the other direction?21 A. In the other direction, and I'm looking22 across the street, so I'm looking all different23 directions.24 Q. On a given day how do you decide whether
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1 you are going to stand where we can see in this2 photo what we've been calling to the right of the3 entrance as you are looking at the entrance, rather4 than stand to the left of the entrance, say, on the5 corner by the supermarket?6 A. I don't make a conscious decision. I have7 my pamphlets and then I begin, and my guess -- when8 I first start, my car is parked on Commonwealth9 Avenue to the right of the entrance, so I would get
10 out of my car and probably begin by standing to the11 right of the entrance, but I quickly move. I'm not12 situated for sure in that particular spot, so I can13 move.14 Q. So you might start on the right, cross15 through the buffer zone to get to the far side of16 Alcorn Street, maybe later on move back?17 A. Well, I don't cross through the buffer18 zone.19 Q. How do you get from the right side of the20 entrance over to the Alcorn corner?21 A. Well, you have to go all the way around,22 all the way around outside the buffer zone, so you23 just walk around.24 Q. How far down the Comm. Ave. do you like to
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1 park?2 A. I'm in the first spot. I get there very3 early.4 Q. Do you have signs placed in or on your car?5 A. Yes.6 Q. And what do they say?7 A. Well, I have two magnetic signs that say,8 Abortion stops a beating heart, and I also have9 exhibit, I guess that would be Exhibit 5, offering10 free help.11 Q. Do you have that attached to the outside of12 the car or inside your window?13 A. It's leaning against the car. The large14 sign is leaning against the car.15 Q. So it's on the ground or sidewalk leaning16 against the car?17 A. Yes.18 Q. The signs that are attached to or leaning19 against your car, where can they be seen from?20 A. The magnetic signs?21 Q. Let start with those, sure.22 A. They can be seen from -- if you're walking23 up Commonwealth Avenue, you can look at my car and24 you can see them.
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1 Q. So if you are walking up the sidewalk from2 what we've been calling to the right of the3 entrance, you can see the signs on your car?4 A. Yes.5 Q. If you are walking from the other6 direction, from the supermarket side of the clinic,7 can you also see the signs on your car?8 A. No.9 Q. Does Mary O'Donnell park her car on Comm.
10 Ave.?11 A. No.12 ATTY. SALINGER: Let's mark this13 photograph as Exhibit 8.14 (Document marked as Exhibit 815 for identification.)16 Q. Based on the time you've spent outside the17 clinic, what does Exhibit 8 show us?18 A. Let's see. Well, it shows us Commonwealth19 Avenue with the traffic. And are you referring to20 the people now?21 Q. Well, let's start with sort of the location22 and the building. This is the clinic; is that23 right?24 A. Yes, this is Planned Parenthood.
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1 Q. So we can see the Planned Parenthood sign2 and that is the same awning we saw in the other3 photos --4 A. Yes.5 Q. -- just above the sign, and the entrance,6 you go under the awning to get to the entrance?7 A. Yes.8 Q. So this photo is taken from the Alcorn9 Street side looking down the sidewalk in front of10 the clinic?11 A. Yes.12 Q. And the yellow line painted there is the13 buffer zone line?14 A. Yes.15 Q. So is it fair to say there is a part of the16 sidewalk right on the corner by Comm. Ave. and17 Alcorn Street that is outside of the buffer zone?18 A. Yes.19 Q. Do you see the orange barrel there in the20 street?21 A. Yes.22 Q. Is it common for there to be a barrel, or23 some police saw horses, or something else positioned24 right about there?
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1 A. The orange barrel is always there. The2 police are not there.3 Q. What effect have you observed the orange4 barrel having on traffic?5 A. I would say to that, I don't know.6 Q. You described when you go from one side of7 the entrance to the other you make a point to8 staying outside the buffer zone?9 A. Yes.
10 Q. So you're walking, when you are immediately11 in front of the building. Right along the edge of12 the curb there?13 A. Yes.14 Q. When you do that does that barrel make sure15 that traffic keeps at some distance from you?16 A. No.17 Q. Ms. McCullen, do you ever stand back by the18 garage entrance at the back side of the building?19 A. No.20 Q. Why not?21 A. There are only a few places I can be at one22 time and I have chosen Commonwealth Avenue. I can't23 keep running all around the whole building, so I24 have chosen just to be at the entrance.
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1 Q. But why?2 A. I believe I do that because that would3 probably be -- more people would be coming through4 the front door than the back, so that would be my5 highest group that I could meet.6 Q. Do you refer to yourself as a sidewalk7 counselor?8 A. Yes.9 Q. And that is also a term that Bill Cotter10 and Operation Rescue use to refer to your work,11 sidewalk counseling?12 A. Yes.13 Q. Are you familiar with a sidewalk counselor14 named Janet?15 A. No.16 ATTY. SALINGER: Now I would like to17 take a five-minute break so we can get reorganized.18 (Recess taken.)19 Q. Ms. McCullen, there is just one topic I20 want to follow up on. You said when you speak with21 Bill Cotter sometimes you speak about work. What22 did you mean by work?23 A. Well, I consider my time in front of24 Planned Parenthood work, and it's not easy, so I
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1 call that work, so I'm talking to him about my time2 at Planned Parenthood, or my job, or my work.3 Q. You don't get paid for that time, do you?4 A. Oh, no.5 Q. Does Operation Rescue pay for any of your6 expenses?7 A. No.8 Q. So, for example, if you are ordering some9 pamphlets you pay for that yourself?
10 A. Yes.11 Q. Do you know whether Bill Cotter gets paid12 for his work?13 A. I don't know.14 Q. And what about Mary O'Donnell, does she get15 paid for the time she spends with you?16 A. No.17 ATTY. SALINGER: All right. I think we18 have no more questions. I don't know whether you19 have questions.20 ATTY. DePRIMO: I have just a couple of21 follow-up questions.22 EXAMINATION23 BY ATTY. DePRIMO:24 Q. Let's start with some of these photographs
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1 here. First of all, look at Exhibit No. 7.2 A. Yes.3 Q. Mrs. McCullen, I'm showing you Exhibit No.4 7; do you recognize that?5 A. Yes.6 Q. What is that?7 A. That would be the beginning or entrance of8 Planned Parenthood on Commonwealth Avenue.9 Q. And the yellow line is?
10 A. The yellow line is the buffer zone.11 Q. Are there occasions on which you may --12 looking at the photograph, are there occasions on13 which you may stand to the right of that yellow14 line?15 A. Yes.16 Q. And are there occasions when, as you are17 standing to the right of that buffer line, that18 somebody may be approaching from the opposite side19 across Alcorn Street?20 A. Yes.21 Q. Are there occasions where you might22 identify that person as someone who may be going23 into the clinic for an abortion?24 A. Yes.
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1 Q. What do you do in that situation?2 A. Well, I would look to see if there is3 anyone that could be standing there to perhaps talk4 to the young couple, and there may not be, because5 if there is a person there, she may be talking to6 someone else, or maybe there is nobody there. Many7 times I'm by myself. So what do I do? Well, I have8 to quickly go from the right across out into the9 street, cross Alcorn, and do my best to greet them.10 Q. What would this person be doing as you are11 walking toward him or her?12 A. They are walking slowly, getting -- trying13 to go into Planned Parenthood. Slowly may not be14 the correct word. They park their car and they are15 on a mission, they are going into Planned16 Parenthood. So does that answer your question what17 they are doing? They are walking to the Planned18 Parenthood.19 Q. My question is, In proximity to you, are20 they walking toward you or are they walking away21 from you.22 A. Well, they are walking toward me.23 Q. And as you walk around the buffer zone are24 you trying to communicate with these folks?
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1 only way you can do it is speaking as we are2 speaking now, eye contact, just a building up of a3 trust, and it has to be pretty close to do that.4 Q. What is your ultimate goal when you are at5 the clinic?6 A. My ultimate goal, I guess, would be two,7 two goals; one, to project caring and to care for8 the woman, because, as I said earlier, no woman9 really wants to have an abortion, and, of course,
10 your baby is also extremely important, but I'm there11 first for the woman and, of course, a child being12 born. I've been to the hospital many times. They13 call me, they say, Come, the baby is coming. There14 is nothing more beautiful than to see the baby come15 and to follow them on their whole journey. I hold16 their hand for the eight or nine months they have17 left. I'm always with them. So there is nothing18 more beautiful. So the birth of the baby, but first19 the mother. The mother is so important too.20 ATTY. DePRIMO: I have nothing else.21 EXAMINATION22 BY ATTY. SALINGER:23 Q. Ms. McCullen, I have just a few follow-up24 questions to clarify a few points you were making.
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1 A. Yes, okay.2 Q. Mr. DePrimo was asking you about what3 happens once in a while if you are on one side of4 the buffer zone and you see someone you would like5 to speak to who is on the other side?6 A. Yes.7 Q. And you talked about going around the8 buffer zone and while walking around the buffer zone9 trying to communicate with the woman or the couple?
10 A. Yes.11 Q. In those circumstances what will you do to12 try to communicate with that person or those people?13 A. Well, sometimes they'll see -- I can't run14 very fast, but they will see me kind of running up15 to them to catch them, and still handing out my16 brochure if I can, if they are not already into the17 zone, where I can't, but yes, I would rush up and18 still say good morning, here, please let me help19 you.20 Q. And when you do that sometimes do people21 come over to you so that you can speak with them?22 A. Sometimes, but I lose a lot, too.23 Q. Mr. DePrimo was also asking you about you24 said there were two incidents where you were talking
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1 to somebody while standing at Alcorn Street and cars2 drove very close to you; do you recall that?3 A. Oh, yes.4 Q. Are you in the habit, when you are not at5 the clinic, of standing in the middle of a street to6 have a conversation?7 A. Repeat that again?8 Q. Are you in the habit, when you are not9 outside the clinic, of standing in the middle of a10 street to have a conversation?11 A. No.12 Q. The buffer zone is on one side of Alcorn13 Street, but as I think you have already testified,14 you can stand and talk to people on the sidewalk on15 the other side of Alcorn Street and be outside the16 buffer zone, right, in front of the supermarket?17 A. Yes.18 Q. And, in fact, that is a place where you19 often do speak with people and hand literature to20 them; is that right?21 A. Yes.22 ATTY. SALINGER: We don't have any more23 questions unless Mr. DePrimo does.24 EXAMINATION
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1 BY ATTY. DePRIMO:2 Q. I just have one question just following up3 on what Mr. Salinger said about you not being in the4 habit of standing in the middle of the street.5 A. Yes.6 Q. Why do you stand in the middle of the7 street on Alcorn Street?8 A. Well, I'm standing there -- so if -- I9 think I see what you mean, so, all right, so the10 couple have gone in, and so I'm still -- I'm still11 in the street, and I'm saying, If you have any12 questions I'm here to help you. I'm still saying13 something so I'm still in the street.14 Q. Where would you prefer to stand?15 A. I would prefer to stand on the sidewalk.16 Q. Which sidewalk?17 A. Well, I would prefer to go right up to on18 the sidewalk where it is safe and where I can be in19 close proximity.20 Q. Just for the record, you are holding21 Exhibit No. 8, and you were pointing to the sidewalk22 that is inside the buffer zone; is that correct?23 A. Yes.24 Q. And is it your testimony that you would
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1 prefer to stand inside the buffer zone on the2 sidewalk to be safe?3 A. Yes.4 Q. Why don't you stand there?5 A. Well, unfortunately, I cannot, because it's6 a law that is upsetting to me that I cannot move. I7 feel restrained, unfortunately, and it's upsetting8 to me I have to feel that I'm restrained, that I9 cannot speak the way I would like to speak, and that
10 is why I'm in America. I would like to have my11 constitutional right so I'm not restrained or12 forbidden to walk.13 Q. Mr. Salinger had suggested that you could14 stand on the sidewalk opposite of the buffer line in15 front of the Star Market; is that correct? Do you16 recall that?17 A. Yes.18 Q. How would that affect your ability to19 communicate to your target audience if you stood20 there?21 A. It would be virtually impossible. I would22 have lost all credibility. I can't project my23 voice. I would have lost a potential help for a24 mother and a child if I'm over here. It's just --
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1 and they are rushing in, they are rushing in.2 Q. I believe also in response to a question3 that Mr. Salinger asked you said that if you are4 standing on the opposite side of the zone and see5 somebody approaching you, you try to rush around the6 zone to approach that person; is that correct?7 A. Yes.8 Q. How quickly can you rush?9 A. Well, not too quickly. I do the best I
10 can, but I'm not 30 years old.11 Q. How old are you?12 A. 74.13 Q. How is your physical health?14 A. My physical health is good.15 Q. Do you have any limitations with respect to16 your legs and knees?17 A. 74 years old, it takes me a little while to18 get around, yes.19 Q. How long is a little while?20 A. Oh, gosh, longer than I would like. If I'm21 missing -- if I miss one person and one baby is22 lost, it's one too many.23 ATTY. DePRIMO: I have nothing else.24 EXAMINATION
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1 BY ATTY. SALINGER:2 Q. I need to follow-up on one point, Ms.3 McCullen.4 A. Okay.5 Q. This corner of the sidewalk in front of the6 supermarket, not infrequently you stand there and7 try to start conversations with women or couples,8 right?9 A. Yes.10 Q. And not infrequently you, in fact, have11 conversation there, right?12 A. Yes.13 Q. It's a location where you not infrequently14 hand literature to people and they take it from you,15 right?16 A. Yes.17 Q. When you said it's virtually impossible to18 stand and communicate with people, that is not19 right, is it?20 A. Well, the point is, if I'm on that side I'm21 distributing, but then we could play the game, I see22 somebody coming up the other way on Commonwealth23 Avenue, and then I'm rushing to that side, if I'm24 going back and forth.
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1 Q. Is this one of the reasons why you try to2 go with Mary O'Donnell, so she could be on one side3 of the zone and you could be on the other?4 A. That is true, but many times Mary is also5 speaking to someone else, so I'm the only one that6 can go, or perhaps she's going to have a break and7 still I'm the only one that is looking at both8 angles, both places on the sidewalk.9 Q. There are quite few sidewalk counselors who
10 go outside the clinic in addition to you and Mary,11 right?12 A. There are other people that come, but13 mostly they are the prayer people. A lot of people14 don't like to speak up because they are more shy or15 they like prayer, which prayer is powerful.16 ATTY. SALINGER: No further questions.17 Thank you.18 ATTY. DePRIMO: I have nothing else.19 (Whereupon, the deposition was concluded20 at 10:36 p.m.)21222324
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UNITED STATES DISTRICT
FOR THE DISTRICT OF MASSACHUSETTS
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ELEANOR McCULLEN, et al.,
Plaintiffs,
v. No. 1:08-cv-10066-JLT
MARTHA COAKLEY, as Attorney
General for the COMMONWEALTH
OF MASSACHUSETTS, et al.,
Defendants.
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Complete Caption on Next Page
DEPOSITION OF ERIC CADIN
Wednesday, May 11, 2011, 1:03 p.m.
Office of the Atty. General
100 Cambridge Street, 12th Floor
Boston, MA 02114
-----Reporter: Carol A. Pagliaro, CSR/RPR/RMR-----
FARMER ARSENAULT BROCK LLC
www.fabreporters.com
50 Congress Street, Suite 415
Boston, Massachusetts 02109
617.728.4404 ~ Fax 617.728.4403
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1 - - - - - - - - - - - - - - - - - -2 ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA,3 GREGORY A. SMITH, CARMEL FARRELL, ERIC CADIN,4 CYRIL SHEA, DONALD GOLDEN, NANCY CLARK,5 MARK BASHOUR, and NOREEN BEEBE,6 Plaintiffs,7 v. No. 1:08-cv-10066-JLT8 MARTHA COAKLEY, as Attorney General for the9 COMMONWEALTH OF MASSACHUSETTS; DANIEL F.10 CONLEY, as District Attorney for Suffolk11 County; MICHAEL W. MORRISSEY, as District12 Attorney for Norfolk County; MARK G.13 MASTROIANNI, as District Attorney for14 Hampden County; and JOSEPH D. EARLY, JR.,15 as District Attorney for Worcester County16 Defendants.1718 - - - - - - - - - - - - - - - - - -192021222324
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1 A P P E A R A N C E S23 LAW OFFICE OF MICHAEL J. DePRIMO4 By Atty. Michael J. DePrimo5 778 Choate Avenue6 Hamden, CT 065187 203.893.9393 ~ Office/Fax 203.281.14968 [email protected] Counsel for the Plaintiffs1011 OFFICE OF THE ATTORNEY GENERAL12 By Kenneth W. Salinger, AAG13 -and-14 By Gabrielle Viator, AAG15 100 Cambridge Street, 11th Fl.16 Boston, MA 0211417 Mailing: One Ashburton Place, 18th Fl.18 Boston, MA 0210819 [email protected][email protected] Counsel for the Defendants.2223 Also present: Shelley Barron24
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1 I N D E X2 EXAMINATION OF: PAGE3 ERIC CADIN4 By Atty. Salinger...........................556789101112131415161718192021222324
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1 P R O C E E D I N G S2 ERIC CADIN,3 a witness called on behalf of the Defendants, having4 been satisfactorily identified by the production of5 his driver's license and duly sworn by the Notary6 Public/Court Reporter, was deposed and testified as7 follows:8 DIRECT EXAMINATION9 BY ATTY. SALINGER:
10 Q. Good afternoon, Mr. Cadin. As you know, we11 just met, I'm Ken Salinger, one of the lawyers12 representing the Commonwealth, and I assume you also13 know you are here today so I can ask you a series of14 questions and you can answer them.15 A. Yes.16 Q. The questions I'm going to ask you, in17 terms of time period, I'm almost entirely going to18 be focusing on the past three and a half years; in19 other words, since the time the legislature changed20 the buffer zone statute.21 A. Okay.22 Q. I gather that periodically you spend time23 outside the Planned Parenthood Clinic in Boston; is24 that correct?
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1 A. Yes.2 Q. How often do you go there?3 A. Now it is approximately once a month or --4 once or twice a month. In the past -- I'm in school5 now, so that is why it's more limited. When class6 is in session it would generally be about once a7 week.8 Q. Where are you in school.9 A. I'm at St. John's Seminary in Brighton.
10 Q. So, for example, summers you would11 typically go once a week?12 A. Right. Summer specifically would be once a13 week.14 Q. Do you ever go the clinic at issue in this15 case in Worcester?16 A. No.17 Q. How about the clinic in Springfield?18 A. No.19 Q. It's about to leave the case, but do you20 ever go to the clinic in Brookline?21 A. I have been twice.22 Q. Do you stick to a regular schedule for when23 you go outside the clinic in Boston?24 A. Yes. For the most part I try to go on the
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1 same day for a few hours in the morning.2 Q. Which day do you particularly go when you3 go once a month?4 A. Thursday, this year, I had free, so I would5 go -- it would depend on when my schedule was open.6 In this year it was Thursday.7 Q. And so what, the second Thursday of each8 month or something like that?9 A. That would not be a set. It would depend10 on class exams or papers and things.11 Q. And when class is not in session and you12 are going about once a week, do you go the same day13 each week or does that vary as well?14 A. That can vary. I would often go on15 Tuesday. Last summer it was Tuesday, Tuesday or16 Wednesday I would go.17 Q. The days that you would go, are those days18 you would pick because they were convenient for you,19 or did you pick those days because somebody else20 asked you to be there then, or for some other21 reason?22 A. Most of the time it was convenient. At23 other times, Bill Cotter, who organizes a schedule24 of sorts to make sure there are people there, would
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1 make known that there were -- someone wouldn't be2 able to make it, so there would be a need for a3 particular day, and then I would try to go in that4 time.5 Q. Bill Cotter organizes or runs Operation6 Rescue in Boston; is that right?7 A. I believe so.8 Q. How do you know Bill Cotter?9 A. I met him through Eleanor McCullen and from10 being out at the Planned Parenthood.11 Q. In Boston?12 A. Mm-mm.13 Q. You said you typically go for a few hours14 in the morning; what hours are those?15 A. It would be typically, I will say, 8:3016 until 11:30, 12:00.17 Q. Are you usually there with someone or are18 you usually there alone?19 A. It's a mix, sometimes with someone,20 sometimes -- I've been there on my own a number of21 sometimes.22 Q. If you are there with someone are there23 particular people you are typically there with?24 A. I've been there with Eleanor McCullen a
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1 number of times.2 Q. Have you been there with anybody other than3 Eleanor?4 A. Yes, and their names escape me at the5 moment.6 Q. Men, women, both?7 A. Mostly women predominantly, almost8 exclusively women.9 Q. When you are outside the clinic in Boston,
10 what do you do?11 A. I try to speak with the women coming in for12 abortion and with the people who are bringing them,13 who are accompanying them, try to have a14 conversation, try to express to them the options15 aside from abortion that are available, all of the16 help that is available.17 Q. Women might go to Planned Parenthood for18 many reasons; how do you know which women are going19 there for an abortion?20 A. I don't know everyone that is going there21 for abortion. A number will say explicitly when22 engaged in conversation that is why they are going.23 Others will look as if -- they will be in very24 loose-fitting clothing and with a friend who is
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1 accompanying them, and usually in pairs or -- so I2 try to engage anyone who is going in, because I'm3 not being aggressive or anything like that.4 I'm trying to make them know and give5 them the information that there are others options6 and that there is real help available, and so even7 if they weren't going in for an abortion, I mean,8 all of this information is very good and helpful and9 is only for -- if it's not particular to them at10 that moment, maybe one of their friends or someone11 they know could really use this information, so...12 Q. How do you go about engaging someone in13 conversation?14 A. I will say hello, I will just engage them15 in conversation. Like I would say -- just make16 known all the help that is available. I would let17 them know there are other options, that they don't18 have to be forced into this decision, and just19 engage them in a very human, personal way with, you20 know, a very friendly demeanor and inviting -- just,21 I guess, just an inviting demeanor, perspective, so22 that a number will stop and talk to me, see what I23 have to say, not yelling at them or lecturing them.24 Q. Help me get a picture. You are doing this
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1 on the sidewalk along Comm. Ave.?2 A. Yes. So it would be on the sidewalk on3 Comm. Ave. if you're looking at Planned Parenthood4 to the right, or in front of Star Market it would5 have to be.6 Q. We marked a few pictures as exhibits this7 morning when I was talking with Ellen McCullen. I'm8 going to show you what has been marked as Exhibit9 No. 6, for example. That is a picture of the front
10 of the Planned Parenthood Clinic in Boston, right?11 A. Yes.12 Q. And the street at the bottom of the13 photograph, that is Commonwealth Avenue?14 A. Yes.15 Q. So you can see the entrance of Planned16 Parenthood, and across that is what, Alcorn Street?17 You can see Star Market?18 A. Mm-hmm.19 Q. So if one were looking at the entrance to20 Planned Parenthood, as you were saying, you could21 either stand off to the right on the sidewalk or to22 the left across Alcorn Street and in front of the23 Star Market there?24 A. Right. That is generally where I would
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1 stand.2 Q. That is generally where you would stand?3 A. Mm-hmm.4 (The Court Reporter asks the Witness to5 respond with a word rather than a sound.)6 A. At times I stand on -- yes, I stand on this7 side or on that side.8 Q. So when you are seeking to engage in9 conversation with people who might be going to
10 Planned Parenthood, do you ever position yourself in11 a location other than the two you just described?12 A. There are times when I would position13 myself in front, but there is only a very small area14 to stand and because -- if I'm there by myself, I15 can't be on both sides at the same time, and so if16 I'm standing directly in front, I can see both sides17 approaching, but I'm in the street and/or right on18 the edge, and it's a very busy street, so...19 Q. What we marked as Exhibit 8 might help20 depict what you were just describing. This is a21 view, tell me whether I'm right, looking from Alcorn22 Street at the Planned Parenthood Clinic entrance?23 A. Yes.24 Q. The yellow line there is the buffer zone
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1 line; is that right?2 A. Yes.3 Q. And there is a gentleman with a blue shirt4 and khaki pants just inside the buffer zone line.5 Between him and the orange barrel there's a small6 strip of sidewalk outside the buffer zone. Do you7 see that?8 A. Yes.9 Q. Is that the location you were talking about
10 when you said sometimes you stand directly in front11 of the --12 A. Yes, I would stand there.13 Q. Let's see. Sometimes you say you are there14 with Eleanor McCullen. Do you two stand together or15 do you each take one side of the entrance?16 A. We will do both, because each of us has a17 different perspective and a unique perspective. She18 is older and female and I am younger and male, and19 so what she has to say is different than what I have20 to say, so there are times when we would both stand21 on the same side and we would both engage a person,22 and there are other times where we would be on23 opposite sides.24 Q. In a typical morning, if you are there on
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1 the sidewalk for three or three and a half hours,2 how many different women or couples will you end up3 having conversation with?4 A. I would say more than 10. I don't know a5 precise number.6 Q. Sure. And the number more than 10, that is7 a rough estimate of the number of people who8 actually stop and engage in conversation with you?9 A. Yes.
10 Q. There are other people who you try to11 engage in conversation, but for whatever reason they12 don't do so?13 A. Yes, yes.14 Q. Do you have any sort of sign with you when15 you stand outside this clinic?16 A. I have not held a sign on many occasions17 there.18 Q. You have held a sign on a few occasions?19 A. There have been times where I would go with20 a large group, and those couple of times I would21 hold a sign rather than have extensive conversation22 with people, just for my own reasons.23 Q. The times you were there with a larger24 groups, was this one of the second Saturdays of the
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1 month gatherings?2 A. Yes.3 Q. Why don't you describe to me those few4 Saturdays when you were there with the large group5 what happened.6 A. I would go -- the most recent one was maybe7 two months ago, and a large group of us from my8 school, we joined with the second Saturday group,9 and so there were a large number of people there,
10 and I primarily wanted to pray during those times,11 and hold a sign, so those would be -- so then we12 would be standing in the street.13 Q. The sign that you were holding, what did it14 say?15 A. I don't remember specifically.16 Q. I'm just wondering whether I have any17 illustrative photos of the gathering you were18 describing. Never mind.19 What else can you remember happening20 when you were there with the larger groups on a21 Saturday? In other words, what were other people22 doing? You described what you were doing there.23 A. I would be -- so I was praying. Some24 people would be trying to counsel the women and talk
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1 to the women and men who were going in. There would2 be escorts, so I guess they would be employees of3 Planned Parenthood or marked as Planned Parenthood4 escorts who would identify, in the same way we5 would, people who they think were going in and would6 go and literally escort them from wherever they7 picked them up to prevent them from hearing or8 engaging with any of us.9 They would either literally stand in the
10 way of what we were doing and follow that person all11 the way to the door, or would start speaking with12 that person while we were to sort of drown out what13 we were saying, or to say that what we were doing,14 that we shouldn't be listened to, we are crazy, we15 are just pro life fanatics, or any number of things16 and to impede and just to block either our message17 or our ability to even engage them.18 Q. What else can you tell me that you saw or19 heard when you were there with these larger Saturday20 groups?21 A. I don't know what specifically you are22 looking for.23 Q. The people in the group accompanying you or24 the group that you were accompanying, what else were
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1 they doing?2 A. On those days there tended to be someone3 leading the Rosary, so we were praying the Rosary in4 a large group, and praying the Devine Mercy Chaplet,5 and people holding a crucifix or sign to --6 Q. Did you ever see people holding a large7 crucifix that would rest on the ground, for example?8 A. I can't remember. People would certainly9 have a crucifix. I can't remember if it was a large10 crucifix.11 Q. The prayers, did anybody when you were12 there have a microphone to amplify their prayer?13 A. Yes.14 Q. Was there a particular person who would15 have the microphone typically?16 A. It would be whoever was leading. Like in17 the Rosary, there would be five decats, and so a18 different person would lead each one and be given19 the microphone.20 Q. Again focusing on these Saturdays, did21 anybody in the group have signs?22 A. Yes, people would have signs. There were23 signs.24 Q. Do you remember what any of those signs
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1 said either specifically or in substance?2 A. One I can remember is it had a blue3 background, and it's this little baby, and it said4 Life on it, and someone has a sign -- I think there5 is a sign that said Abortion is Murder.6 Q. The Saturday gatherings, the ones you have7 been to, how long do they last typically?8 A. I think two hours. I couldn't say exactly9 with confidence the exact amount of time,
10 approximately two hours.11 Q. Your best estimate is two hours?12 A. I think so.13 Q. So let's turn back to when you are there14 either alone or with Eleanor. Do you hand out15 literature?16 A. Yes, at times I will have a small pamphlet17 generated by A Woman's Concern that I would hand or18 attempt to hand to the women going in, anyone19 passing by. It has, in very brief form, a lot of20 the information and services that are available for21 help.22 Q. Is the pamphlet marked Exhibit 1, by any23 chance, the one you have in mind?24 A. That one is not the one I have in mind. I
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1 think that is an older one.2 Q. Do you remember the color of the one you3 have in mind?4 A. Smaller and -- that one.5 Q. Exhibit 3?6 A. Yes, this one.7 Q. When you are handing that out where do you8 get your copies of that from?9 A. Either Bill Cotter or Eleanor McCullen.
10 Q. In a typical morning -- again if you're11 there three, three and a half hours -- how many12 copies of this will you hand out that women will13 actually take from you?14 A. I would say 20 to 30 maybe, but it's15 significantly less because of the buffer zone. I'm16 not able to hand out -- because previously I was17 able to at least hand one to almost everyone who18 went in and now that is just not possible.19 Q. Previously you liked to stand closer to the20 actual entranceway; is that correct?21 A. Yes.22 Q. From that location you could try to hand23 literature to just anybody going in?24 A. Yes, and most people would take the
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1 literature then.2 Q. Now that you are remaining outside the3 buffer zone?4 A. It's very difficult to even hand out the5 literature because, one, when I was able to stand6 inside what is the buffer zone now, it was far7 easier to see who was going in. Now you don't know8 as easily as you could before and so now the -- and9 if I'm on one side I can't -- by the time I would10 get to the other side, they would have, in a lot of11 cases, already gotten into the buffer zone, so it is12 not possible to give them to them, and then on the13 left side, the Alcorn Street side in front of --14 basically in front of the Star Market, there is -- I15 mean, there is a lot of people, some going into Star16 Market, some going to Planned Parenthood, so it's17 just harder to be able to give them to the people18 who would benefit.19 Q. In a typical morning when you are there on20 the sidewalk outside the clinic, how many women21 actually stop or at least pause and engage in some22 conversation with you?23 A. I think I said before at least 10, roughly,24 I would have some kind of conversation with.
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1 Q. In having those conversations, what is your2 goal? What are you trying to accomplish?3 A. I want to, one, let them know that there is4 all sorts of help available for them and that I and5 the people at these centers, and anyone else who is6 present at these things, really does care about them7 and wants to help them, and help their child, and8 help their situation, that this is not the only9 choice that they have, which a lot feel.
10 Q. Are you hoping to encourage women to visit11 a Woman's Concern instead of going to Planned12 Parenthood?13 A. If they wanted and need the services that14 they had, certainly. If they didn't need these15 particular services or want these particular16 services, I don't force them and wouldn't, but this17 is a particular place that is just an example of a18 place that has very real help.19 Q. For you, what is a successful interaction20 with a woman outside the clinic?21 A. Well, at the minimum, that they can receive22 the information that I have, that they know in a way23 that a lot of them didn't know before more of a24 fuller picture of their choices available to them
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1 and the options available to them, so as a start2 that would be -- that there are people who do care3 about them and that there is real help; that would4 be a minimum.5 Q. Just to pause on the minimum, if a woman6 listens to you, speaks to you, takes literature from7 you, are you achieving that minimum level of success8 do you think?9 A. Well, not as I would have, not as I was10 before, no, because there is -- like if I'm there by11 myself, I cannot be on both sides at the same time12 and so I can't engage -- if I am on the left side in13 front of Star Market and someone is coming from the14 right, it's just not really possible for me to get15 over there to be able to even do this minimum16 amount.17 Q. So let me --18 A. Because what is important is, more than19 like a sign or anything, is actually engaging and20 having a real conversation, letting them know -- if21 it's through me, great -- that there are real people22 who can help them and want to help them, and that is23 why, even more than handing the thing, it's24 important to be able to speak to them in a human
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1 way, because there really is a personal element2 that, you know, is not just a slogan, it's really3 help.4 Q. I'm assuming, but tell me if I'm wrong,5 that sometimes you approach or try to speak with a6 woman who isn't interested and goes on her way; is7 that fair to say?8 A. Yes.9 Q. And you have already said, I guess a couple10 of times, sorry about that, that in a typical11 morning you are able to succeed in having real12 conversation with 10 or more women; is that fair?13 A. Yes. I mean real, some kind of real14 engagement, yes.15 Q. Now, I had interrupted you, you described16 for you what would be sort of the minimum level of17 communication or success you are hoping to achieve.18 What beyond that minimum level would you hope to19 accomplish through your efforts outside the clinic?20 A. I would hope that the woman chooses to keep21 her child, that if she needed it she was able to get22 the real help and support that she needs and that in23 a lot of cases we can offer.24 Q. Have you been able in the past three and a
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1 half years to guide women who you meet outside the2 clinic in Boston to, as you say, help and support3 that is not from Planned Parenthood?4 A. Yes.5 Q. Tell me more about the help and support you6 have been able to guide women to?7 A. Well, a number of women have, one, chosen8 not to have the abortion, and others, specifically9 through the help of the Woman's Concern and Eleanor
10 have -- I have participated in baby showers that11 were done and all sorts of gifts that were given in12 support, bringing money and checks to women to help13 pay their rent to -- from baby showers to being like14 the courier even from someone else to help pay the15 rent or helping them with food, and clothes, and16 diapers.17 Q. Since November of 2007, again when the law18 was changed, how many women have you helped convince19 not to have an abortion?20 A. I can't recall an exact number.21 Q. I don't need an exact number, but what is22 your best estimate based on your memory?23 A. Honestly I can't think of a number at the24 moment because I haven't kept track of how many I
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1 specifically have helped -- or not helped, but2 convinced otherwise.3 Q. Do you think it's at least one woman?4 A. Yes.5 Q. More than one?6 A. Yes.7 Q. More than 10?8 A. I think so.9 Q. Are you also aware of women who Eleanor, or10 somebody else who is doing work on the sidewalk in11 front of the Boston clinic, have convinced not to12 abort her child?13 A. Yes.14 Q. And you're aware of this through how;15 meeting these women at baby showers or talking to16 Eleanor? Explain to me how you are aware of it.17 A. Talking to Eleanor, at different -- helping18 to bring -- collect gifts for different baby showers19 or Baptisms that may be happening, like20 participating in Baptisms, bringing food to them,21 so... and then Bill Cotter will send -- has22 different e-mails where he will say -- he will just23 sort of mention a woman today decided this so...24 Q. In these various ways how many women are
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1 you aware of who, through contacts made outside the2 clinic in Boston, the Planned Parenthood Clinic,3 have been given help or support through the group of4 people you have been talking about?5 A. A number?6 Q. A vague sense of how many are we talking;7 three, thirty, a hundred? You know, order of8 magnitude.9 A. I think more than a hundred.
10 Q. Have you been involved, in the times that11 you have spent outside the clinic, in helping12 convince women to go to a Woman's Concern?13 A. Yes. At one point, A Woman's Concern,14 there was an office for Woman's Concern down the15 street -- there was, there is no longer -- and then16 also to the center in Dorchester.17 Q. Again, I know these are hard question to18 remember, but roughly how many women have you helped19 convince go to see folks at A Woman's Concern20 instead of going into Planned Parenthood?21 A. More than five.22 Q. When you are outside the clinic, either23 alone or with Eleanor, have you seen anyone else24 present at those times engaged in some sort of
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1 expressive or communicative activity near the buffer2 zone?3 A. Yes.4 Q. Tell me about what you have seen or heard.5 A. I've seen people there praying, I've seen6 people there holding signs, and I've seen people7 there -- I mean, I have mostly seen people there8 praying.9 Q. Do you remember the substance of any of the
10 signs that you have seen people holding nearby this11 buffer zone?12 A. I remember signs, you know, advocating life13 and helping the baby or the woman.14 Q. Have you by any chance ever been on one15 side of the buffer zone and seen somebody holding a16 sign on the other side of the buffer zone?17 A. I can't recall that happening.18 Q. Have you seen anybody else near the Boston19 clinic handing out literature?20 A. Yes.21 Q. Tell me what you observed in that regard.22 A. I've seen one woman who hands out rosaries23 and some other form of -- I don't know which one, it24 might be this -- standing on one side handing it
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1 out.2 Q. Do you know her name by any chance?3 A. I can't remember right now. I do, but I...4 Q. It happens to me all the time. It's a5 curse.6 A. I can't remember.7 Q. In the disclosures that you had to make8 during this case you listed the names of a number of9 people, some of them you touched on, but I'm going10 to go through those names and ask you to tell me11 what you observed each of them doing in front of the12 clinic.13 Bill Cotter, first of all. We spoke14 about him some but --15 A. Yes.16 Q. Tell me your understanding based on your17 observations of what Bill Cotter does outside the18 clinic.19 A. I've seen Bill pray outside and I've seen20 him document with pictures what is going on.21 Q. Meaning take photographs?22 A. Like take photos. And I've seen Bill try23 to organize to make sure there was someone there.24 Q. What is your understanding of how Bill goes
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1 about organizing just to try to make sure someone is2 there?3 A. He calls or sends an e-mail.4 Q. Are there particular times of day or days5 of the week that Bill is trying to make sure someone6 is outside the clinic?7 A. All the days they are opened, so Tuesday to8 Saturday.9 Q. Is morning the main time when he is trying
10 to get people there or is he trying to get people11 there all day long?12 A. I'm not sure. Definitely in the morning.13 In the afternoon as well. I don't know exactly what14 he is thinking or in terms of the entire workday,15 but absolutely in the morning.16 Q. What else have you seen or heard Bill17 Cotter doing with respect to activities outside the18 Boston clinic?19 A. I've seen him encouraging the people there20 who are either praying or trying to talk to the21 women.22 Q. Anything else?23 A. I think I've seen Bill a couple of times24 himself trying to talk to the women.
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1 Q. Anything else?2 A. I can't think of anything else.3 Q. Who is Ruth Schiavone, S-c-h-i-a-v-o-n-e?4 A. Ruth is a woman who also is there, tries to5 talk to the women. Ruth is the one who hands out6 the rosaries.7 Q. So you have seen Ruth near the buffer zone8 speaking with women, handing them rosaries.9 A. Yes.
10 Q. Handing literature to women?11 A. Yes.12 Q. What else have you seen or heard Ruth doing13 outside of the clinic buffer zone?14 A. Just trying to engage and talk to the women15 and praying.16 Q. As much as you were?17 A. Yes.18 Q. How frequently do you see Ruth near the19 clinic?20 A. I'm not sure. I think Ruth is there pretty21 regularly on Tuesday, but I'm not -- I'm not sure22 which day, but I think she tries to come weekly.23 Q. So your understanding is either from Ruth24 or from -- is it from Ruth or Bill who told you that
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1 Ruth is there usually once a week or somebody else?2 A. I can't remember who told me.3 Q. How frequently are you and she there at the4 same time?5 A. I'm not sure how to answer it. I think --6 I mean, whenever she is there we are there at the7 same time whenever we are both there. Sometimes.8 Q. Far less frequently then when you and9 Eleanor McCullen are there together?10 A. Yes.11 Q. How old is Ruth?12 A. I don't know.13 Q. Roughly?14 A. Well, she is older than I am. Depending on15 how you mean, significantly older than I am.16 Q. Who is Jean Blackburn Zarrella?17 A. Jean is another woman who at times has come18 out and prayed and spoken with women.19 Q. You've observed Jean Zarrella outside the20 Boston clinic from time to time?21 A. I've observed her there, yes.22 Q. What have you seen or heard Jean do?23 A. Trying to speak to the women and pray.24 Q. Have you seen Jean trying to hand
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1 literature to anyone?2 A. I can't remember.3 Q. Does Jean ever stand with or hold a sign?4 A. I can't remember.5 Q. How about Ruth, does she ever stand with or6 hold a sign?7 A. I don't remember that either.8 Q. Who is Michael Sheehan?9 A. He is someone I go to school with and I10 have seen a few times in the morning when I have11 been there. He speaks Spanish, so he can speak to a12 lot of people that I cannot.13 Q. Have you and he ever gone there together or14 you just coincidentally run into him?15 A. I have never gone there with him. He would16 take the train there.17 Q. Is that how you get there as well?18 A. I drive.19 Q. Where do you park?20 A. Generally at different metered spots on21 Commonwealth Ave.22 Q. Do you have any -- or put any signs on or23 in your car when you are parked near the clinic?24 A. No.
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1 Q. Do you have any bumper stickers on your2 car?3 A. No.4 Q. What have you seen and observed Michael5 Sheehan doing near the buffer zone outside the6 Boston clinic?7 A. I have seen him praying and I've seen him8 talking with women and speaking Spanish and talking9 with the Spanish people.10 Q. Have you ever seen Michael holding or with11 a sign?12 A. I don't remember.13 Q. Have you seen him handing literature to14 anyone?15 A. Yes.16 Q. Do you happen to know whether he hands out17 a Spanish language flyer in particular?18 A. I don't know. I can't remember.19 Q. Who is Paul Williams?20 A. He is a man who I've seen there on21 Saturdays.22 Q. With a large group?23 A. With a large group, yes.24 Q. What have you seen or heard Paul Williams
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1 doing when he is outside this clinic?2 A. I don't know if he leads it, but he is one3 of the leaders of the prayer and the rosary and the4 chaplet.5 Q. Eleanor McCullen, what have you seen or6 heard Eleanor doing outside the Boston clinic?7 A. I have seen her talk with the women and8 I've seen her pray out there. I don't remember if9 I've seen her hand literature. No, I have,
10 actually.11 Q. Have you participated in or heard some12 conversations that Eleanor has had with women on the13 sidewalk outside the Boston clinic?14 A. Yes.15 Q. Do you think she is pretty effective in16 those conversations?17 A. I think she is -- you know, she is able to18 offer her perspective and help when she is able to19 engage the women.20 Q. Is she good at engaging and communicating21 with the women she is speaking to on the sidewalk?22 A. Yes.23 Q. Do you think you have gotten good at doing24 that?
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1 A. I try.2 Q. Do you think you have gotten good at it?3 A. I think I have gotten better.4 Q. We are going to take a real short break so5 we can figure out whether we have any more questions6 for you or not.7 (Recess taken.)8 (Whereupon, at 1:49 p.m. the deposition9 was concluded.)101112131415161718192021222324
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1 COURT REPORTER'S CERTIFICATE2 I, Carol A. Pagliaro, Registered Merit Reporter3 and Notary Public in the Commonwealth of4 Massachusetts (my commission expires (04/27/2018),5 hereby certify that the foregoing transcript of the6 deposition of Eric Cadin, taken on May 11, 2011, in7 the matter of Eleanor McCullen, et al. v. Martha8 Coakley, et al., is a true and accurate9 transcription of my stenographic notes, to the best10 of my skill and ability, and that the deponent was11 sworn by me, having provided satisfactory evidence12 of identification as required by Executive Order 45513 (03-13) of the Governor.14 I certify further that I am neither counsel for,15 related to, nor employed by any parties to the above16 action and that I am not a relative or employee of17 any attorney or counsel employed by the parties18 thereto, nor financially or otherwise interested in19 the outcome of the action.20 Transcript review was requested of the reporter.2122 ____________________________23 DATED: 5/20/11 Carol A. Pagliaro24
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1 SIGNATURE PAGE/ERRATA SHEET2 I, Eric Cadin, hereby certify that I have read the3 foregoing transcript of my testimony, and further4 certify under the pains and penalties of perjury5 that said transcript is a true and accurate record6 of said testimony (with the exception of the7 following changes listed below):8 Page Line Change and Reason Therefor9
101112131415161718192021 Signed this________ day of _____________, 2011.222324 Eric Cadin
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Volume 1, Pages 1-61, Exhibits 9-12
UNITED STATES DISTRICT
FOR THE DISTRICT OF MASSACHUSETTS
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ELEANOR McCULLEN, et al.,
Plaintiffs,
v. No. 1:08-cv-10066-JLT
MARTHA COAKLEY, as Attorney
General for the COMMONWEALTH
OF MASSACHUSETTS, et al.,
Defendants.
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Complete Caption on Next Page
DEPOSITION OF JEAN BLACKBURN ZARRELLA
Friday, May 13, 2011, 9:28 a.m.
Office of the Attorney General
100 Cambridge Street, 12th Floor
Boston, Massachusetts 02114
-----Reporter: Alan H. Brock, RDR, CRR-----
Farmer Arsenault Brock LLC
www.fabreporters.com
50 Congress Street, Suite 415
Boston, Massachusetts 02109
617.728.4404 ~ Fax 617.728.4403
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1 - - - - - - - - - - - - - - - - - -2 ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA,3 GREGORY A. SMITH, CARMEL FARRELL, ERIC CADIN,4 CYRIL SHEA, DONALD GOLDEN, NANCY CLARK,5 MARK BASHOUR, and NOREEN BEEBE,6 Plaintiffs,7 v. No. 1:08-cv-10066-JLT8 MARTHA COAKLEY, as Attorney General for the9 COMMONWEALTH OF MASSACHUSETTS; DANIEL F.10 CONLEY, as District Attorney for Suffolk11 County; MICHAEL W. MORRISSEY, as District12 Attorney for Norfolk County; MARK G.13 MASTROIANNI, as District Attorney for14 Hampden County; and JOSEPH D. EARLY, JR.,15 as District Attorney for Worcester County,16 Defendants.1718 - - - - - - - - - - - - - - - - - -192021222324
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1 A P P E A R A N C E S:23 Law Office of Michael J. DePrimo4 Michael J. DePrimo, Esq.5 778 Choate Avenue6 Hamden, Connecticut 065187 203.281.14968 [email protected] for Plaintiffs1011 Office of the Attorney General12 Kenneth W. Salinger, Esq.13 Gabrielle Viator, Esq.14 100 Cambridge Street, 11th Floor15 Boston, Massachusetts 0211416 617.963.2567 fax: 617.727.576217 [email protected][email protected] for the Defendants2021 Also present: Shelley Barron222324
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1 I N D E X23 EXAMINATIONS4 JEAN BLACKBURN ZARRELLA5 MS. VIATOR 567 EXHIBITS MARKED8 Exhibit 10 document, "Did You 209 Know...."10 Exhibit 11 document, "Hands" 2211 Exhibit 12 photograph 4412 Exhibit 9 document 191314 Exhibits retained by Attorney Viator15161718192021222324
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1 May 13, 2011 9:28 a.m.2 P R O C E E D I N G S3 JEAN BLACKBURN ZARRELLA, Sworn4 EXAMINATION5 BY MS. VIATOR:6 Q. Ms. Zarrella, we just met, but for the7 record, my name is Gabrielle Viator, and I'm an8 attorney here in the Attorney General's Office.9 Could you please state your name for the
10 record.11 A. Jean Blackburn Zarrella.12 Q. As you know, I'll be asking you a number of13 questions here this morning. All of the questions14 that I'm going to ask relate to the time period15 since the amended buffer zone law went into effect,16 so that's since November of 2007. Okay?17 A. That's fine.18 Q. And you're a plaintiff in this case; is19 that correct?20 A. I am.21 Q. Do you engage in pro-life activities22 outside of the Planned Parenthood clinic on23 Commonwealth Avenue in Boston?24 A. No.
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1 Q. Do you ever visit the Planned Parenthood2 clinic on Commonwealth Avenue in Boston?3 A. Yes.4 Q. How often do you go there?5 A. At least once a week.6 Q. And when do you go?7 A. Saturday morning.8 Q. Do you go any other days of the week?9 A. Rarely.
10 Q. How often do you go on other days of the11 week?12 A. Probably once every two or three months.13 Q. During those once every two or three14 months, is there a particular day you go?15 A. A Wednesday.16 Q. And when you go on Saturdays, what hours17 are you there?18 A. As close to 7:00 as possible, and I leave19 between 9:30 and 10:00.20 Q. And why do you go at that particular time?21 A. To offer my help.22 Q. Is there a reason you go at 7:00 a.m. in23 particular?24 A. The clinic opens at that time.
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1 Q. And when you go on Wednesdays, what time do2 you generally go?3 A. About, I would say, about 9:30, 10:00. I4 have other errands to do, so I just drop by for a5 short time.6 Q. Approximately how long?7 A. An hour.8 Q. And why is it that you go at 9:30 on those9 days?
10 A. It's a convenient time for me.11 Q. What do you do when you're there?12 A. I get as close as I can to the patients13 going into the abortion mill and offer them my help14 that's available.15 Q. And how do you offer them your help?16 A. I have literature, and when possible, I17 speak to them.18 Q. Who do you speak to?19 A. The women that are in all probability going20 in for an abortion.21 Q. How do you determine who's in all22 probability going in for an abortion?23 A. It's very difficult, because of the zone.24 I'm rather far back from the doorway. So I just
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1 have to take it on a presumptive idea.2 Q. Now, Planned Parenthood offers other3 services. Are you primarily looking to speak with4 women who are there for an abortion --5 A. Yes.6 Q. -- as opposed to some other service?7 A. Yes.8 Q. What do you say to these people?9 A. "May I help you? I have a lot of help10 available."11 Q. And how do they respond?12 A. It's rather brief because of the buffer13 zone.14 Q. Do they ever respond?15 A. Always.16 Q. What do they say?17 A. Yes or no, that I could help them.18 Q. When they say yes, do they stop to talk to19 you?20 A. Sometimes.21 Q. Approximately how often do they stop to22 talk to you?23 A. How often, percentagewise?24 Q. Sure. Or times a day, if that's easier.
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1 A. That's very difficult to answer.2 Q. More than once a day does a woman stop to3 talk to you?4 A. Yes.5 Q. More than five times a day?6 A. No.7 Q. So a woman stops to talk to you between one8 and five times a day on an average day.9 A. One and four, perhaps.
10 Q. Describe for me your typical conversation11 when a woman does stop to talk with you.12 A. It's very hard, because I'm with them such13 a brief period of time before they cross over to the14 buffer zone. I feel my contact is essential, the15 feeling of love that I have when I'm there, and help16 I have available for them. It's hard to get17 information out in a brief period of time that I'm18 allowed.19 Q. But when a woman does stop to speak with20 you, what do you talk about?21 A. I pass them literature and show them what22 we have to make available to them.23 Q. Sometimes do women tell you that they don't24 want to speak with you?
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1 A. On occasion.2 Q. And what do they say?3 A. "I don't think I want the information."4 There's lots of times people are going by the5 abortion mill instead of going in. That's something6 that I can't discern 35 feet away from the door.7 Q. When you do speak with a woman, I believe8 you said, you offer help. What sort of help do you9 offer?10 A. Medical care, housing.11 Q. Anything else?12 A. I think that pretty much covers it --13 medical care, health.14 Q. And how long do these conversations usually15 last?16 A. Very brief, very brief.17 Q. More than --18 A. It was different before the buffer zone19 came into effect.20 Q. More than two minutes?21 A. Less than two minutes.22 Q. You said you hand out literature.23 A. Uh-huh.24 Q. How often do people take the literature
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1 that you hand out?2 A. I would say -- now, these aren't3 necessarily people going into the abortion mill.4 But most people take what is offered to them.5 Q. Approximately how many pieces of literature6 do you hand out in a typical day?7 A. As I say, these aren't necessarily people8 going into the abortion mill door, because I can't9 determine that 35 feet away. But everybody that
10 passes by I offer to them. Perhaps half of them11 take it.12 Q. Do some refuse?13 A. Yes.14 Q. Do you ever display a sign or signs with15 you when you're there?16 A. I don't.17 Q. How do you get to Planned Parenthood?18 A. Pardon me?19 Q. How do you get there? Do you drive?20 A. Yes, I do.21 Q. Where do you park?22 A. Anyplace that's available.23 Q. Do you generally park on Commonwealth24 Avenue?
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1 A. I do.2 Q. Do you place any signs in or against your3 car?4 A. No.5 Q. We've talked about your speaking with6 people and handing out literature. Is there7 anything else that you do when you're outside of8 Planned Parenthood?9 A. I pray.10 Q. Do you pray out loud?11 A. Sometimes.12 Q. How do you pray?13 A. Sometimes the rosary, sometimes the Hail14 Mary.15 Q. Do you pray alone or with others?16 A. Usually alone.17 Q. Do you ever use a microphone when you pray?18 A. No.19 Q. Is there anything else that you do when20 you're there?21 A. Tell them I'm there because I care about22 them, that I love them.23 Q. You tell who that?24 A. Anybody that I can, that I have a chance
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1 to.2 Q. Where do you usually stand when you're3 outside the Planned Parenthood clinic?4 A. Facing the door to the left.5 Q. So, to get a mental image: When you're6 facing the door, Alcorn Street is to the left; is7 that right?8 A. Yes, that's right.9 Q. And do you stand on the corner in front of10 the Star or Shaw's Market there?11 A. Sometimes, but mostly on the corner of12 Alcorn, on the street, outside the buffer zone.13 Q. In Alcorn Street?14 A. Actually in the street, yes.15 Q. And do you ever stand on the corner in16 front of Star Market?17 A. On occasion.18 Q. And do you ever stand in front, directly in19 front, of the doors?20 A. On occasion, yes.21 Q. And do you ever stand on the area to the22 right of the doors?23 A. If I see someone coming that might possibly24 be going in, that gives me a chance to speak to them
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1 before they get to the buffer zones, I kind of2 peruse that, I kind of watch that.3 Q. What are you looking for when you watch?4 A. What am I looking for? I guess to help5 somebody.6 Q. Let me rephrase. How do you identify a7 woman who you believe is headed into the clinic?8 A. A youngish person.9 Q. Anything else?10 A. No.11 Q. Are you generally alone or with others?12 A. I'm generally alone at that time, Saturday13 mornings.14 Q. Do others join you throughout the morning?15 A. Yes. I generally, though, stand alone.16 Q. And why do you stand on the corner of17 Alcorn Street in that particular spot?18 A. There are the three possibilities that19 women would be going into the abortion mill.20 Q. What do you mean by the three21 possibilities?22 A. Across Commonwealth Avenue, down Acorn23 Street, and across in front of Shaw's Market.24 Q. There's no sidewalk across from the clinic
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1 entrance, is there? Across from the clinic entrance2 is the T tracks in the middle of Commonwealth Ave.;3 is that right?4 A. That's right.5 Q. Is there a sidewalk along the T tracks in6 the middle of the street?7 A. Not at that point, no.8 Q. So a woman entering the clinic would have9 to walk one of the three ways that you just
10 mentioned to get to the door; is that correct?11 A. Yes, on that side. But then, as I said, I12 watch the other side, too, when they're alone --13 which is kind of difficult to manage that.14 Q. We'll look at some pictures in a minute.15 I'd like to show you what we previously16 marked as Exhibit No. 3. Do you recognize this17 document?18 A. Of course I do.19 Q. What is it?20 A. It's information that explains where they21 can go for help.22 Q. This appears to be a two-sided document.23 Is this something that you hand out to women outside24 of Planned Parenthood?
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1 A. Yes. Yes, it is.2 Q. Where do you get this document?3 A. Bill Cotter, William Cotter.4 Q. Who's William Cotter?5 A. He's -- he's our person that frequents the6 abortion mills.7 Q. How do you know him?8 A. I met him -- I met him in '88.9 Q. How did you meet him?10 A. Going to abortion mills.11 Q. And he's the president of Operation Rescue;12 is that right?13 A. Indeed.14 Q. And what is Operation Rescue?15 A. It's a group that tries their best to help16 women produce their babies --17 Q. And how do they --18 A. -- how to help them.19 Q. How do they help them?20 A. With information that we have for them, to21 help them.22 Q. Do you report your activities outside of23 Planned Parenthood to William Cotter?24 A. No, I don't.
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1 Q. Do you keep any records of your activities?2 A. No, I don't.3 Q. If you look on the exhibit in front of you,4 you see on the bottom the website5 www.awomansconcern.org. Do you know what A Woman's6 Concern is?7 A. I do.8 Q. What is it?9 A. A facility that tells women what they can10 do for them, instead of aborting their babies.11 Q. And where is this facility?12 A. There are many in Greater Boston.13 Q. Where are some of those?14 A. One is in Dorchester.15 Q. Have you ever been there?16 A. I don't recall. I've been doing this a17 long time.18 Q. Who works at A Woman's Concern?19 A. I don't know.20 Q. Do you try to convince pregnant women to go21 to A Woman's Concern instead of to Planned22 Parenthood?23 A. I offer it to them when I'm able to.24 Q. And do women ever take you up on that
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1 offer?2 A. Yes, they have, down through the years.3 Q. How often?4 A. I can't answer that. I really can't. It's5 been a long, beautiful road that I've been on.6 Thank you.7 Q. In the past year approximately how many8 times have you helped a woman in deciding to go to A9 Woman's Concern?10 A. I haven't.11 Q. Not once in the past year?12 A. Not once.13 Q. In the last three years?14 A. Once.15 Q. Once in the last three years?16 A. Once, uh-huh.17 Q. Approximately how often do you hand out18 this Exhibit No. 3?19 A. Well, not necessarily to women going into20 the abortion facility. As I said, I really don't21 know that. I'm much too far from the door. So22 probably ten a day when I'm there.23 Q. Is this a pamphlet you use every day when24 you're there?
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1 A. I use different materials.2 MS. VIATOR: I'd like to mark this -- I3 believe we're on Exhibit No. 9.4 (Exhibit 9, document, marked for5 identification.)6 Q. I'm showing you what's been marked Exhibit7 No. 9. This appears to be a two-sided trifold; I8 think maybe the photocopying of it is a bit off. Do9 you recognize this?
10 A. I do.11 Q. What is it?12 A. It's literature, but I just have one piece13 of this. I'm ordering more.14 Q. Where do you order it from?15 A. There's an address right there.16 Q. Is this the Heritage House 76, Inc. address17 in Arizona?18 A. Yes.19 Q. Is that right?20 A. Uh-huh.21 Q. Is this something that you hand out outside22 of Planned Parenthood?23 A. I only have the one, and I have handed that24 out. So that I'm waiting now to get some in the
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1 mail I've purchased.2 Q. Did you have more of these in the past and3 you handed them all out?4 A. No.5 Q. Where did you get the one that you have?6 A. Probably someone gave it to me, and I like7 it.8 Q. Why do you like it?9 A. Well, I think it shows the beautiful little
10 baby.11 Q. You said you're ordering more of these.12 A. Yes.13 Q. Do you pay for them out of pocket?14 A. I do.15 MS. VIATOR: I'd like to mark this16 Exhibit No. 10, please.17 (Exhibit 10, document, "Did You18 Know...." Marked for identification.)19 Q. Again, this appears to be a two-sided20 document. Do you recognize it?21 A. I do.22 Q. What is it?23 A. It describes the abortion pretty24 accurately.
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1 Q. Is this something that you hand out outside2 of Planned Parenthood?3 A. I do.4 Q. How often do you hand out this document?5 A. Anybody that passes me by, I offer it to6 them.7 Q. I'm going to just ask that you let me8 finish my question, even though you anticipate what9 it is.
10 A. I'm very happy to. I'm sorry.11 Q. It just makes it easier to get it all down12 on the record.13 You said you do hand this out?14 A. Uh-huh.15 Q. Also, please just "yes" or "no," so that16 the court reporter can --17 A. I hand it out.18 Q. How often do you hand this out?19 A. I really don't know.20 Q. Is this something you hand out every day21 that you're there?22 A. I do.23 Q. Where do you get this document?24 A. A fellow pro-lifer made it up. He designed
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1 it, printed it, and he gave me a supply of them.2 Q. Who is that?3 A. I don't know his name. Sorry.4 Q. When you said "he," "he printed it," did he5 personally print it?6 A. I wouldn't know that. I know that he gave7 them to me.8 Q. On the back do you see at the very bottom9 it says, "Flyer composed by Defenders of Women"?
10 Are you familiar with Defenders of Women?11 A. No, I'm not.12 Q. How long have you been using this13 particular piece of literature?14 A. I'd say a year.15 MS. VIATOR: Could we please mark this16 Exhibit 11.17 (Exhibit 11, document, "Hands," marked18 for identification.)19 Q. Again, this is a two-sided piece. Do you20 recognize this?21 A. I do.22 Q. What is it?23 A. It's one of the leaflets that I hand out24 when I'm able to.
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1 Q. How often do you use this particular2 leaflet?3 A. Maybe three or four times each time I go4 there.5 Q. Where do you get this leaflet?6 A. I purchase them.7 Q. Where do you purchase them?8 A. I don't know the address. I can't tell you9 that.10 Q. Do you order them?11 A. I do.12 Q. Do you get them in the mail, or do you go13 to a store?14 A. They're in the process of being mailed, I15 hope.16 Q. And you pay for these out of pocket?17 A. I do.18 Q. Are there any other pieces of literature19 that you use when you're outside --20 A. Various, various literature that I receive21 oftentimes in the mail.22 Q. When you say you receive it in the mail, is23 it literature that you personally order?24 A. Some I've ordered, like a couple of these.
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1 Some just come. Obviously, I'm on a list of2 pro-lifers.3 Q. Do you have any literature in the Spanish4 language?5 A. I try to keep some with me.6 Q. I'd like to show you what we've marked7 Exhibit No. 4.8 A. I don't have this. I've never had that.9 Q. Does that not look familiar to you?
10 A. No.11 Q. Are there any others in particular that you12 use on a regular basis?13 A. These are pretty much it.14 Q. What is it that you're trying to accomplish15 outside of Planned Parenthood?16 A. I'm a Christian, and I'm following my17 beliefs that each life is valuable, and I'd hate to18 see parents go home, the mothers, fathers, go home19 with broken hearts. That's what they do after their20 abortion.21 Q. Are you there to try to persuade women not22 to go through with the abortion?23 A. Yes, I am.24 Q. And have you ever convinced a woman not to
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1 go forward with her abortion?2 A. Since '88, yes, many. This was prior to3 the buffer zone, of course.4 Q. Since '88 approximately how many, total?5 A. About 110.6 Q. What about in the last three and a half7 years, since November of 2007, how many women have8 you persuaded not to?9 A. I think one.
10 Q. You speak with between one and four women a11 day outside the clinic; is that right?12 A. Yes.13 Q. And the woman that you persuaded not to14 have an abortion, was she someone that you had15 spoken with outside of the clinic?16 A. Yes. But this was a different abortion17 mill. This was Repro, in Brookline. Are you18 talking now -- I'm sorry. I'm a little confused.19 Start over, please.20 Q. I'm talking specifically with regard to the21 Planned Parenthood clinic in Boston.22 A. Okay. None.23 Q. Since November 2007 have you engaged in any24 activities outside any other clinic in
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1 Massachusetts?2 A. Repro closed. You would say more, more --3 prior to the time, the year that you gave me, prior.4 So....5 Q. When you say Repro, are you referring to --6 Where is that?7 A. Coolidge Corner, Brookline.8 Q. And that clinic is closed now; is that9 right?
10 A. Yes, it is.11 Q. Have you ever been to Women's Health12 Services at 111 Harvard Ave., in Brookline?13 A. Prior to its opening.14 Q. You've not been there since it's opened?15 A. No.16 Q. Have you ever been to the Planned17 Parenthood clinic in Worcester?18 A. No.19 Q. Or their clinic in Springfield?20 A. No.21 Q. So how many women have you convinced not to22 have an abortion outside of the Planned Parenthood23 clinic in Boston since November of 2007?24 A. None. None that I'm aware.
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1 Q. But you have spoken to between one and four2 women a day outside that clinic on average; is that3 right?4 A. Yes.5 Q. Do some of those women not continue to walk6 into the clinic?7 A. Most of them walk by.8 Q. Let's look at some photos of the clinic.9 I'd like to show you what we've previously marked as
10 Exhibit No. 6. Do you recognize that to be the11 Planned Parenthood clinic on Commonwealth Avenue?12 A. Entrance, yes.13 Q. And this street in the foreground is14 Commonwealth Ave.; is that right?15 A. Yes, it is.16 Q. And you see the Planned Parenthood sign?17 A. I see it.18 Q. The entrance is just to the right of that19 sign, under the 1055 numbers; is that right?20 A. Yes, it is.21 Q. And to the left is Alcorn Street; is that22 right?23 A. Yes, it is. There's no buffer zone in this24 photo.
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1 Q. I think it's difficult to see at this2 angle. You can see the yellow line kind of about --3 A. There's nothing to the right and there's4 nothing to the left on Acorn Street.5 Q. We can look at another picture where it's6 more clear. But looking at this picture, generally7 where you stand, is it to the left-hand side, where8 Alcorn Street is?9 A. Yes.
10 Q. And I believe you testified that you11 sometimes also stand over to the right-hand side; is12 that right?13 A. Yes. It's quite a long distance.14 Q. When you're there, are there ever any other15 counselors out there with you?16 A. There's some -- there's another lady that17 comes shortly after I arrive, and she has some18 signs.19 Q. What's her name?20 A. Ruth.21 Q. And where does she stand?22 A. She puts up the signs surrounding the23 buffer zone.24 Q. Where does she put up the signs? On the
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1 right-hand side? On the left-hand side?2 A. Both.3 Q. Does she prop the signs up against4 something, or does she hold them? What does she do5 with the sign?6 A. She has sign holders, metal sign holders.7 Q. Oh. So the sign stands up on its own; is8 that right?9 A. Right, without anybody holding them.10 Q. How about, how big are her signs?11 A. They vary.12 Q. How do they vary? What is the smallest13 sign?14 A. About 2 by 1 is the smallest. I don't15 measure them, so I can't say for sure.16 Q. About how large is her largest sign?17 A. Probably 3 or 4 by 3 feet.18 Q. And what do the signs say?19 A. It shows pictures of the baby.20 Q. Do any of them have any text on them?21 A. "Going, going, gone." It shows the baby22 losing its life.23 Q. Any others?24 A. "Take my hand, not my life."
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1 Q. Any others?2 A. The number of abortions in a year is one3 sign that occurs at Planned Parenthood, that4 facility, on Commonwealth Avenue.5 Q. Are there any others?6 A. That's about it.7 Q. Now, your -- when you stand on Alcorn8 Street, does she set up her signs around the other9 side of the zone, to the right here?
10 A. Yes, she does.11 Q. And can you see those signs from where12 you're standing?13 A. On the left?14 Q. Uh-huh.15 A. I can see the sign, yes.16 Q. Does Ruth talk to women?17 A. She's busy setting up the signs, and I'm18 doing the talking.19 Q. Once her signs are set up in their metal20 holders, does she then talk to women?21 A. Not too much. She'll start praying.22 Q. Let's look at another picture. This is a23 picture we've previously marked as Exhibit No. 8.24 Do you recognize the scene in this picture?
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1 A. I do.2 Q. Now, the street in the foreground here is3 Alcorn Street; is that right?4 A. Yes, it is.5 Q. And to the right here is Commonwealth Ave.;6 is that right?7 A. Yes.8 Q. You can see the Planned Parenthood sign?9 Do you see the sign?
10 A. Pardon me?11 Q. Do you see the Planned Parenthood sign?12 A. I do.13 Q. And the entrance is just past that sign; is14 that right?15 A. Right.16 Q. Do you see the yellow line there?17 A. I do, but I believe it's larger than that18 at this point. How old is this photo?19 Q. Well, I can represent to you that this20 photo was taken last week.21 A. It looks so narrow. It looks so -- it22 seems as though I stand farther out in the street23 than that, but I guess -- I guess if it's last week,24 I believe you.
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1 Q. When is the last time you were at Planned2 Parenthood?3 A. Saturday.4 Q. Just this past Saturday?5 A. Yes.6 Q. So approximately where on this photograph7 do you stand?8 A. I generally stand here, right at the corner9 of Commonwealth and Acorn.
10 Q. Now, you've indicated with your finger. Is11 it just below the area where the man in the --12 A. Yes.13 Q. -- the khaki pants and blue shirt are14 standing; is that right?15 A. That's right.16 Q. Do you see that orange barrel --17 A. Yes, I do.18 Q. -- there? Have you ever seen an orange19 barrel when you've been there?20 A. Yes.21 Q. How often is it there when you're there?22 A. Always, since they put it out, when they23 realized the hazard of our standing on Acorn Street.24 Q. When did they put it out?
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1 A. I would say maybe six months ago.2 Q. And that barrel forces cars to remain 23 feet or so from the curb; is that right?4 A. And especially busses on Commonwealth5 Avenue. It keeps them a little bit away from where6 we're standing.7 Q. Now, just to the right of the man in the8 khaki pants and blue shirt there is an area that you9 can see between the yellow line and the curb; is
10 that right?11 A. Yes.12 Q. And do you ever stand in that spot?13 A. I do.14 Q. And do you ever talk to people when you're15 standing in that spot to the right of the man in the16 khaki pants?17 A. I do.18 Q. And do you ever hand out literature to19 people when you're standing in that spot?20 A. I offer it, yes.21 Q. And do women take literature from you when22 you're standing --23 A. Sometimes.24 Q. Again, please let me finish the question.
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1 A. Okay.2 Q. Do women ever walk over to you when you3 offer help to them to talk to you when you're4 standing in that spot?5 A. Sometimes people that appreciate our being6 there do.7 Q. What do you mean when you say appreciate8 your being there?9 A. "Thank you for being here."
10 Q. Do people often say that to you?11 A. Yes.12 Q. How often?13 A. Not very often.14 Q. Once a day?15 A. I would say once a day.16 Q. Do people ever say anything that indicates17 they do not appreciate your being there?18 A. Yes.19 Q. And what do they say?20 A. Swear words.21 Q. Now, we talked a little bit about Ruth, who22 shows up with her signs shortly after you arrive; is23 that right?24 A. Yes, about the same time, depending on
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1 traffic.2 Q. And is that on Saturday mornings that she3 arrives?4 A. Yes.5 Q. Now, when we've been talking about where6 you stand and what you do, is that the same on both7 Saturdays and Wednesdays?8 A. No, it's different on Wednesdays.9 Q. What do you do on Wednesdays?
10 A. I'm a prayer supporter.11 Q. I'm sorry?12 A. A prayer supporter on Wednesdays.13 Q. What is a prayer supporter?14 A. Saying the rosary.15 Q. And where do you stand when you say the16 rosary?17 A. Usually in the middle, in front of the18 doorway, outside the buffer zone.19 Q. So looking back at Exhibit No. 8, in front20 of you: Would that be in the area to the right of21 the man in the khaki pants or to where the sign is22 near the fire hydrant?23 A. It's about halfway to the fire hydrant and24 the orange -- the orange whatever you call it.
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1 Q. Barrel?2 A. Upside down barrel, I guess.3 Q. When you say the rosary, do you use rosary4 beads?5 A. I do.6 Q. Do you have any sign with you?7 A. No.8 Q. Do you have anything else that you display?9 A. No.10 Q. A crucifix?11 A. No.12 Q. Do you pray alone or with others?13 A. Both.14 Q. When do you pray alone?15 A. When nobody else is there.16 Q. How often are others there?17 A. As time -- as it gets later, more come to18 pray. I'm talking about Wednesdays.19 Q. On Wednesdays. And on Wednesdays you said20 you arrive at approximately 9:30; is that right?21 A. Yes, uh-huh.22 Q. So others arrive later.23 A. Uh-huh.24 Q. Approximately what time do they arrive?
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1 A. I really don't know. I can't really recall2 that. I would say between 10:00 and 11:00.3 Q. And approximately how many others arrive on4 a typical Wednesday?5 A. It varies. One to four.6 Q. Do you know who those people are?7 A. Parents, pro-lifers. Greg, Tom.8 Q. Do you know Greg's last name?9 A. No.10 Q. Do you know Tom's last name?11 A. No.12 Q. Are there any others?13 A. That's pretty much all I can name.14 Q. When you pray the rosary, do you pray out15 loud?16 A. Some people do. I generally don't.17 Q. Does Greg pray the rosary out loud?18 A. I don't pay attention to him. I pay19 attention to my own praying.20 Q. So you don't pray the rosary together; is21 that right?22 A. Well, in proximity.23 Q. You pray the rosary beside each other; is24 that right?
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1 A. Yes, when he's there.2 Q. You don't go through the decades together;3 is that right?4 A. Sometimes. Sometimes I can hear them.5 Q. Have you ever seen anyone use an amplifier6 to amplify their voice, a microphone, when they7 pray?8 A. I have.9 Q. When was that?10 A. The second Saturday of the month.11 Q. What's the second Saturday of the month?12 What significance does that have?13 A. Rosary vigil.14 Q. And what is the rosary vigil?15 A. Saying 20 decades of the rosary.16 Q. Approximately how many people are at a17 typical second Saturday?18 A. Approximately 30.19 Q. And where do they stand?20 A. In a barrier put out by the police.21 Q. What do you mean by "a barrier"?22 A. A metal -- metal fencing.23 Q. Is that on the sidewalk?24 A. Yes, outside the buffer zone on the
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1 sidewalk.2 Q. Do you have to stand in the middle of the3 barrier?4 A. No, I don't, because that's on Saturday,5 and I'm doing sidewalk counseling on Saturday.6 Q. I see. So when you're sidewalk counseling7 on Saturday, you're standing on Alcorn Street; is8 that right?9 A. Yes.
10 Q. And the prayer supporters are standing on11 the other side of the zone and around it; is that12 right?13 A. Yes. I also go over there when no one else14 is there.15 Q. So from where you stand on Alcorn Street,16 can you see the prayer supporters on the other side17 of the zone?18 A. Yes.19 Q. And can you hear their prayer?20 A. Yes.21 Q. Do any of them ever have signs?22 A. Yes.23 Q. How large are the signs?24 A. Approximately 5 feet by 4 -- 6 feet by 4
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1 feet.2 Q. What do the signs say?3 A. It doesn't say anything. It's a picture of4 our Lady of Guadeloupe.5 Q. And who is our Lady of Guadeloupe?6 A. She's the mother of life in America.7 Q. And where is that sign typically set up?8 A. They bring it, and then they hold it.9 Q. Looking at the picture in front of you,
10 Exhibit No. 8: Approximately where on that picture11 would the sign be?12 A. Forward of the tree.13 Q. Approximately where the couple is standing14 in the white shirt and the black dress; is that15 right?16 A. Yes.17 Q. And can you see that sign when you stand on18 Alcorn Street?19 A. Yes.20 Q. Do you ever see prayer supporters on second21 Saturdays displaying anything other than signs?22 A. Ruth's signs are generally there, also.23 Q. And are those the signs you described24 before, with the statements such as "Going, going,
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1 gone"?2 A. Yes.3 Q. Are there any other signs --4 A. Yes, the number of abortions performed at5 that clinic for the year.6 Q. Any others?7 A. The ones I had told you previously.8 Q. Other than Ruth's signs, are there any9 additional signs?10 A. Our Lady of Guadeloupe, and that's it.11 Q. Does anyone ever display a cross or12 crucifix?13 A. Yes.14 Q. Which? A cross?15 A. Two people have a crucifix in their hands.16 Q. Do you know who those people are?17 A. One is Greg, and the other one's name is18 Paul, and I don't know his last name, either.19 Q. How large is the crucifix?20 A. Greg has one on a pole, so it's a little21 larger. And Paul's is held in his hands, and it's22 about a foot in length.23 Q. So when you say Paul's is -- excuse me,24 when you say Greg's is on a pole, is it
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1 approximately as tall as he is or taller?2 A. A little taller.3 Q. Have you ever seen anything else displayed?4 A. Not that I can recall.5 Q. Have you ever seen a baby carriage6 displayed?7 A. In past years I think I saw it once.8 Q. Since 2007, outside the Planned Parenthood9 clinic in Boston, have you ever seen a baby
10 carriage?11 A. I don't recall.12 Q. Have you ever seen a baby casket or coffin13 displayed?14 A. Yes.15 Q. How often have you seen that?16 A. Once a year, Good Friday.17 Q. And where is that generally set up?18 A. I don't recall. I'm sorry.19 Q. But you have seen a baby casket set up on20 Good Friday?21 A. I don't know if it's a real casket, but it22 resembles one.23 Q. What happens on Good Friday outside of24 Planned Parenthood?
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1 A. We say 14 stations of the cross.2 Q. Who's "we"?3 A. Everybody that comes.4 Q. And approximately how many people?5 A. Fifty -- thirty-five to fifty, perhaps.6 Q. What time on Good Friday does that take7 place?8 A. I believe it's 9:00 to 10:30.9 Q. When you say 14 stations of the cross, do10 you say the stations of the cross out loud?11 A. They are said out loud. There's a priest12 in presence.13 Q. And does the priest use a microphone or14 amplifier?15 A. I'm not sure.16 Q. Where do you usually stand when you visit17 on Good Friday?18 A. Anyplace at all that I see I might be19 needed to help the mothers a -- around the buffer20 zone, of course.21 Q. Do you participate in the stations of the22 cross?23 A. When things are quiet.24 Q. Do you counsel women while the stations of
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1 the cross is going on?2 A. If I possibly can. I try.3 Q. Can you hear the stations of the cross4 being said out loud?5 A. I can hear them.6 Q. What else do you see on Good Fridays?7 A. It's very difficult for me to explain this.8 But when I go there, I go there really to pray and9 to concentrate, not to look around. So I'm sounding10 quite obscure, I think, but that's from my heart.11 Q. Have you ever seen a large cross displayed12 on Good Fridays?13 A. I have in the past.14 Q. How large is the cross you've seen?15 A. Haven't seen it for a while. That's a real16 large one, though. Maybe 8 feet.17 Q. Were you at the Good Friday vigil last18 year?19 A. Last year?20 Q. In 2010.21 A. Yes.22 MS. VIATOR: Could you please mark23 Exhibit 12.24 (Exhibit 12, photograph, marked for
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1 identification.)2 Q. You see what we've marked as Exhibit3 No. 12. Do you recognize this to be a picture taken4 in front of the Planned Parenthood clinic in Boston?5 A. I do.6 Q. And the entrance to the clinic is just in7 the bottom right-hand side of this photograph; is8 that right?9 A. I believe so.
10 Q. And do you see the large wooden cross11 that's displayed there --12 A. I do.13 Q. -- in the top right-hand side?14 Is that the cross that you were15 referencing?16 A. Yes.17 Q. And just to the left of that there is what18 appears to be a baby-sized coffin. Do you see that?19 A. I do.20 Q. Is that the coffin that you referenced?21 A. I'm not sure. I didn't notice it --22 Wait a minute now. No, I haven't23 noticed that for a couple of years. Obviously it24 was there. This was taken in '10?
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1 Q. Yes. And do you see the blue police2 barricade set up --3 A. I do.4 Q. -- behind where people are standing?5 A. I do.6 Q. Do those protect the people standing there7 from the cars coming by?8 A. Yes.9 Q. This cross and this casket, these are
10 directly out the front door of the clinic; is that11 right?12 A. I believe so.13 Q. Have you ever seen anyone dressed in a14 costume outside of the Planned Parenthood?15 A. No.16 Q. We've talked about some of the people that17 you've observed outside of the clinic, Greg and18 Paul, praying. Have you observed any others19 engaging in any other type of activity?20 A. In their lives?21 Q. Outside of the Planned Parenthood clinic22 since 2007, have you seen anyone do anything other23 than praying or holding signs or handing out24 literature?
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1 A. No.2 Q. Have you seen others talk to women and3 counsel them?4 A. I really don't remember. It's quite a5 solemn day, Good Friday.6 Q. Speaking generally, not just about Good7 Friday, but about all of the Saturdays and8 Wednesdays that you have been to the Planned9 Parenthood clinic since 2007: Have you ever seen10 someone else speaking to women who are entering the11 clinic?12 A. Yes.13 Q. Who?14 A. There are replacements -- not replacements.15 But people come later than I go there, so when they16 start to arrive, that's when I go home. So I really17 can't name them to you.18 Q. Is there anyone who maintains the schedule19 for when you're there and when the others are there?20 A. No, no.21 Q. Are you ever -- do you ever overlap? Are22 you ever there at the same time?23 A. Yes.24 Q. So you have observed other counselors.
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1 A. Yes.2 Q. And where do they stand when you're there?3 A. I just say "hello" to them, greet them, and4 "Glad to see you," and I go home -- get in my car5 and go home.6 Q. Have you ever observed one of them talking7 to a woman entering the Planned Parenthood clinic?8 A. Yes.9 Q. And where were they standing?
10 A. Perhaps on Acorn Street; also farther up11 here.12 Q. When you say "farther up here," you mean to13 the right of the doors or to the left?14 A. Both.15 Q. If you're standing on Acorn Street, does16 the other person generally stand on the other side?17 A. Yes.18 Q. Why is that?19 A. To try to get the people spoken, to get a20 chance to speak to the people that might be going21 into the abortion mill. Every chance that we get,22 we try to greet them, show that we love them, we're23 there to help them, period.24 Q. So if you're standing at Alcorn Street,
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1 you'll be looking for people coming from the -- in2 front of the Star Market along Commonwealth Ave. Or3 up Acorn Street?4 A. Yes. Now, that's early on Saturday5 mornings, when I arrive, when no one else is there6 except Ruth.7 Q. And when someone else is there, they8 generally stand on the other side?9 A. Exactly.10 Q. Is that right? And they are looking for11 people who are coming from Commonwealth Ave. from12 where the Eastern Mountain Sports is?13 A. Yes. But as I said, I'm pretty much14 heading for my car.15 Q. I'm sorry?16 A. I'm pretty much heading to my car between17 9:30 and 10:00.18 Q. I understand.19 A. Leaving.20 Q. So you generally leave when the others21 arrive?22 A. Yes.23 Q. How many others arrive?24 A. I really don't know.
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1 Q. Is it more than one?2 A. Yes.3 Q. Do you see where they stand?4 A. No. And it's an unknown commodity. It's5 whomever decides to come, and it varies.6 Q. Have you ever seen one of the other7 counselors convince a woman not to have an abortion?8 A. Yes.9 Q. Since 2007 outside the Planned Parenthood
10 clinic have you ever seen one of the other11 counselors convince a woman not to have an abortion?12 A. I haven't seen it. I heard.13 Q. When you say you heard, did you listen and14 hear, or do you mean that you were aware of it?15 A. I was told.16 Q. Who told you?17 A. One of the other counselors.18 Q. Do you know that counselor's name?19 A. No. I don't even know who told it to me.20 But I just was joyful that a life was saved.21 Q. How many lives are you aware of being saved22 outside the Planned Parenthood clinic?23 MR. DePRIMO: Do you have a time frame?24 MS. VIATOR: Since 2007. Generally, as
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1 we said at the beginning, we're talking about since2 November of 2007.3 A. Would you repeat that, please?4 Q. Since November of 2007 how many lives saved5 are you aware of outside the Planned Parenthood6 clinic in Boston, approximately?7 A. Now, do you mean that I was told by phone8 or that I witnessed?9 Q. That you became aware of any way, whether10 by phone or in writing or email or any way.11 A. Maybe five.12 Q. Do you know a woman named Eleanor McCullen?13 A. I do.14 Q. Do you know what she does outside of15 Planned Parenthood?16 A. I believe pretty much what I do.17 Q. Do you know if she has convinced any women18 not to have an abortion since 2007?19 A. I believe she has.20 Q. Do you know approximately how many?21 A. I don't.22 Q. There are a few people that you mentioned23 in your disclosures in this case --24 A. Uh-huh.
52
1 Q. -- as people that you've observed or that2 you know of who engage in activities outside of the3 clinic. Some of them we've talked about already.4 William Cotter is someone you mentioned; correct?5 A. Yes.6 Q. And he's the president of Planned7 Parenthood?8 A. No.9 Q. Excuse me. I misspoke. He's the president10 of Operation Rescue; is that correct?11 A. Yes.12 Q. Do you ever see him outside of Planned13 Parenthood?14 A. I do.15 Q. What do you see him do there?16 A. Offer literature to prospective people17 going into the abortion mill, outside of the buffer18 zone.19 Q. How often do you see him there?20 A. Generally once a week.21 Q. On Saturdays, is it?22 A. Yes.23 Q. Does he generally have signs with him?24 A. Yes.
53
1 Q. What do his signs say?2 A. Pretty much the same that I had mentioned3 before, that Ruth: "Take my hand, not my life."4 Q. Who's William House?5 A. He's also a sidewalk counselor or prayer6 supporter, perhaps both.7 Q. How often do you see him outside of Planned8 Parenthood?9 A. Not very often.10 Q. Once a week?11 A. Maybe once a month.12 Q. And does he bring signs with him?13 A. I have not seen them. I just see him at14 the vigil once a month.15 Q. When you say "at the vigil," do you mean16 the second Saturday?17 A. The second Saturday, yes.18 Q. Who's Joe Shubster, is it?19 A. I don't know.20 Q. Do you know anyone named Joe who engages in21 activities outside Planned Parenthood?22 A. I don't recall a Joe.23 Q. Ruth Schiavone we spoke of?24 A. That's right, yes.
Case 1:08-cv-10066-JLT Document 132 Filed 08/09/11 Page 14 of 24
000418
Case 1:08-cv-10066-JLT Document 132 Filed 08/09/11 Page 24 of 24
000419
sion
to
end
the
life
of
thei
r pa
tien
ts!
The
pro
-lif
e m
ovem
ent
beli
eves
tha
t al
l hu
man
lif
e is
val
uabl
e fr
om c
once
Pti
on t
o na
tura
l de
ath.
Ob
ject
ion
s to
th
e P
ro-L
ife
Sta
nce
Du
Abo
rtio
ns R
eal•
y K
ill a
Bab
y?
Mos
t ab
orti
ons
happ
en a
fter
the
sev
enth
wee
k of
ge
stat
ion
(9 w
eeks
LM
P).
6 At
this
poi
nt t
he b
aby
is w
ell
form
ed a
nd h
as h
ad a
bea
ting
hea
rt f
or 2
9 da
ys..
ALI 1
th
e ba
by n
eeds
is ti
me,
foo
d, a
nd p
rote
c-ti
on;
the
sam
e as
any
inf
ant
need
s. O
ver
13,0
00
babi
es i
n th
e U
.S. ar
e kil
led e
ach y
ear
afte
r 21
wee
ks o
f ge
stat
ion
(fro
m t
he l
ate
seco
nd t
rim
es-
ter
to t
he
end o
f th
e th
ird t
rim
este
r).
9 M
any o
f th
ese
13,0
00 b
abie
s w
ould
hav
e be
en a
ble
to s
ur-
vive
out
side
-the
ir m
othe
r's w
omb.
/°
Wha
t Abo
ut R
ape
and
Ince
st"?
A
bort
ion
s b
ecau
se o
f ra
pe
and
in
cest
are
rar
e,
repr
esen
ting
abo
ut o
ne p
erce
nt o
f al
l ab
orti
ons.
11
The
arg
umen
t is
mad
e to
pla
y on
em
otio
ns a
nd t
o tr
y t
o j
ust
ify a
ll a
bort
ion
s w
ith
th
ese
few
cas
es.
Add
itio
nall
y, th
e be
lief
that
a r
ape
vict
im w
ants
to
and
shou
ld h
ave
an a
bort
ion
is o
ften
mis
lead
ing.
M
any c
arry
thei
r bab
ies
to t
erm
and c
hoose
to
plac
e th
em f
or a
dopt
ion
or r
aise
the
ir c
hild
the
m-
selv
es. W
hile
it
is n
ot a
n ea
sy s
itua
tion
, the
tru
th
is, h
avin
g an
abo
rtio
n is
jus
t ad
ding
a h
ad c
hoic
e on
top
of a
ver
y di
ffic
ult c
ircu
mst
ance
.
Wh&
I A
bbut
Vie
Hea
lth o
f th
e M
othe
r?
Agai
n,
abort
ions
for
this
rea
son
are
rel
ativ
ely
ra
re,
acco
un
tin
g f
or
abo
ut
thre
e p
erce
nt
of
all
abor
tion
s.z
In s
itua
tion
s w
here
the
mot
her'
s li
fe
is a
t ri
sk, th
e dec
isio
n r
equir
es c
aref
ul
thought
and
pray
er. T
his
type
of
situ
atio
n do
es n
ot h
ave
an
easy
ans
wer
. Unf
ortu
nate
ly, b
ecau
se o
f th
e se
nsi-
tivity
of
this
sit
uati
on, s
ome
abor
tion
pro
pone
nts
mak
e "h
ealt
h"
out
to b
e an
yth
ing
fro
m s
tres
s to
th
e ne
ed f
or a
C-s
enti
on d
eliv
ery.
The
end
res
ult i
s th
at t
he "
heal
th e
xcep
tion
" ca
n be
use
d to
jus
tify
v,
war
ty a
ny a
bort
ion
for
any
reas
on.
a fr
Ui
I Can
't A
fford
a B
ahy
One
of
the
larg
est
reas
on
s fo
r ab
ort
ion
is
that
w
omen
bel
ieve
the
y ca
n't
affo
rd a
bab
y.12
How
-ev
er, t
here
are
man
y so
cial
pro
gram
s to
hel
p w
ith
a ch
ild
, an
d t
her
e ar
e an
est
imat
ed t
wo
mil
lio
n
coup
les
in th
e U
.S. w
aitin
g to
ado
pt.
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20
Why
f r
o-L
ife?
A
bort
ioi
is o
ne o
f th
e m
ost
cont
rove
rsia
l to
pics
of
our
tim
e .T
here
is s
uch
stro
ng p
assi
on D
R ea
ch s
ide
of t
he a
t ju
men
t th
at i
t cr
eate
s an
atm
osph
ere
that
dis
coura
3es
dis
cuss
ion. M
any c
onver
sati
ons
that
do
occ
u co
Rsi
5t o
f qu
ick
sni
ppet
s w
hich
nei
ther
si
de t
en I
s to
hea
r or
und
erst
and.
Whi
le t
he p
as-
sion
s m
ke
it h
ard
to h
ave
a ci
vil
disa
gree
men
t, i
t is
pos
siL
le to
mak
e an
ord
erly
, hea
rtfe
lt, a
nd lo
gi-
call
y so
t nd
argu
men
t for
the
pro-
life
pos
itio
n.
Pro
- L f
e vs
. Pro
-Cho
ice
The
pro
lif
e po
siti
on I
s al
mos
-t al
way
s co
ntra
sted
w
ith
thE
pro
-cho
ice
posi
tion
. Whi
le t
his
seem
s to
m
ake
si r
ise
init
iall
y, i
t is
rea
lly
crea
king
a f
alse
ch
oke.
lie
ople
who a
re p
ro-l
ife
are
not
agai
nst
"c
hoic
e In
stea
d, t
hey
are
for
the
prot
ecti
on o
f b
oth
wt
men
an
d b
abie
s. T
hei
r des
ire
is f
or
the
best
chc
ice
to
be
mad
e fo
r bo
th m
othe
r an
d ch
ild,
an
d th
al i
s th
e ch
oice
of
life
.
SIP
A
1.1 •.t
.
.1.111.
51.1.1
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klf.1
77 rE
ti ?
S
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III.
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O
: t —
t4'0
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\
Pro
tel:
ting
Wom
en
The
pec
pie
of
the
pro-
life
mov
emen
t ar
e de
eply
co
ncer
n K
i wit
h w
omen
invo
lved
In
trou
bled
pre
g-
nanc
ies.
Mor
e th
an j
ust
say
ing s
o,
they
hav
e cr
e-
,,, a
ted
mo
.e t
h.an
3,0
00 P
regn
ancy
Car
e C
ente
rs i
n ,19
the
U.S
alo
ne,
work
ing
to
su
pp
ort
an
d e
du
cate
mot
hers
. The
y of
fer
pare
ntin
g an
d li
fe-s
kill
s cl
ass-
es;
prov
ide
clot
hes,
bab
y fo
od,
and d
iaper
s; a
nd
give
em
otio
nal
and
phys
ical
sup
port
. The
se c
en-
ters
are
des
igned
to r
each
moth
ers
In t
rouble
d
situ
atio
ns a
nd p
rovi
de t
hem
eth
an
alte
rnat
ive
to
abor
tion
that
is f
ull o
f su
ppor
t, lo
ve, a
rid
help
.
Th
e g
oal
of
thes
e an
d o
ther
org
aniz
atio
ns
is t
o
help
wom
en
avo
id t
he
dan
ger
s as
soci
ated
w
ith
abor
tion
. Abo
rtio
n is
a s
erio
us s
urgi
cal
proc
edur
e th
at c
an c
ause
phy
sic-
al c
ompl
icat
ions
suc
h as
in-
fert
ilit
y a
nd d
eath
? In
the
U.S
. over
140,0
00
wom
en a
yea
r ha
ve i
mm
edia
te m
edic
al c
ompl
ica-
tion
s fr
om a
bort
ion.
a
ha
y, e
l /M
ore
co
? r,
f,'I•
Ii
10. 1
1..0
b
0s .4
. rp
1. I
I .r
. eS
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r"i'.
1..
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0,.
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ie J
r fi
rm '
t...rr
ioo
),I;
iry
iev
0%11
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1.11
IA to
or
os.h
i
f-odo
. ...
o,r.r
oyiN
.A.
le i
e:Fr
dtv.
co
rni.o
a Ii rC
s
sicl
h
fly
Pro -
life
orga
niza
tion
s al
so tr
y to
hel
p w
omen
avo
id
Pos
t Abo
rtio
n S
tres
s (P
AS
) sy
ndro
me.
PA
S c
ause
s a
wom
an t
o be
com
e em
otio
nall
y un
stab
le e
ven
to
the
poin
t of
suic
ide
as th
ey s
trug
gle
to d
eal w
ith
the
guil
t of
thei
r ab
orti
on(s
). P
AS
has
bee
n do
cum
ent-
ed il
l tho
uRnd
s of
wom
en w
ho h
ave
had
abor
tion
s.3
Whi
le it
may
he
too
late
for
man
y w
omen
to a
void
th
ese
dang
ers,
the
pro-
life
mov
emen
t has
res
pond
-ed
wit
h ph
ysic
al h
elp
and
post
-abo
rtio
n co
unse
ling
fo
r w
omen
in th
eir
tim
e of
nee
d.
Pro
tect
ing
Bab
ies
The
bab
y g
row
ing i
n t
he
moth
er i
s th
e pri
mar
y
mot
ivat
ion
for
the
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t. A
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l an
d hi
dden
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bab
y ha
s a
hear
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t by
20
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er c
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n4
and t
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oes
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egun
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orm
. 5 A
ll th
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by n
eeds
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tim
e, f
ood,
and
pro
tect
ion
(the
sam
e as
any
infa
nt)
to b
e b
orn
in
to a
fam
ily
. It
is
thes
e b
abie
s w
ho
nee
d t
o be
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tect
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Whe
re D
oes
It L
ead?
O
ne
of
the
mai
n c
once
rns
of
the
pro
-lif
e m
ove-
men
t is
the
cor
e is
sue
behi
nd a
bort
ion.
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rtio
n,
wh
ile
terr
ible
in
its
elf,
can
cre
ate
a so
ciet
y t
hat
do
es n
ot v
alue
the
lif
e of
th
e w
eak
est.
One
of
the
most
tro
ubli
ng s
igns
of
this
sli
de
into
va
luel
ess
life
is
the
call
for
infa
ntic
ide.
Inf
anti
cide
is
the
kill
ing
of b
abie
s w
ho h
ave
alre
ady
been
bor
n by
sta
rvat
ion
or o
ther
mea
ns.W
hi le
this
see
ms
un-
like
ly, i
t ha
s al
read
y be
en s
ugge
sted
by
Mar
gare
t S
ange
r (f
ound
er o
f P
lann
ed
Par
enth
ood)
, Fra
n-ci
s C
rick
(N
obel
Lau
reat
e), J
ames
Wat
son
(dis
-co
vere
r of
DN
A)
and m
any o
ther
s.‘
Eve
n m
ore
rece
ntly
, an
Illi
nois
sen
ate
bill
tha
t w
ould
out
law
le
avin
g ne
wly
bor
n b
abie
s to
sta
rve
to d
eath
was
de
feat
ed in
com
mit
tee.
Alt
houg
h it
wou
ld h
ave
ap-
plie
d on
ly t
o in
fant
s w
hD w
ere
born
ali
ve a
fter
an
unsu
cces
sful
abo
rtio
n, t
he s
uppo
rt f
or
allo
win
g a
bab
y t
o d
ie i
n a
tra
sh c
an d
emonst
rate
d a
wil
ling-
nes
s to
acc
ept
infa
nti
cid
e. W
hen
ab
ort
ion
is
lega
l unti
l th
e m
om
ent
of
bir
th i
n a
ll 5
0 s
tate
s, m
any
inte
llec
tual
s don't
see
a pro
ble
m w
ith a
llow
ing
"abort
ion"
unti
l one
day
, th
ree
day
s, t
hre
e w
eeks,
an
d ev
en f
urth
er b
eyon
d th
e da
y of
bir
th. T
he p
ro-
life
mo
vem
ent
bel
iev
es t
her
e m
ust
be
a re
spec
t fo
r li
fe f
rom
the
mom
ent
of c
once
ptio
n.
Hum
an
life
co
nti
nu
es t
o b
e d
eval
ued
as
euth
a-nas
ia (
the
kill
ing
of p
eopl
e bef
ore
thei
r nat
ura
l de
ath)
has
bec
ome
lega
l in
som
e U
.S. s
tate
s an
d a
num
ber
of c
ount
ries
aro
und
the
wor
ld.T
his
slid
e in
to e
uth
anas
ia h
as b
een s
how
n t
o b
e re
sponsi
ble
fo
r m
ore
than
1
,00
0 d
eath
s in
a s
ing
le y
ear
In
the
Net
herl
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whe
re p
hysi
cian
s m
ade
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deci
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DID 3701, KNO1.11.. that dwring t ha
abortion procedure, the doctor rips thE arms and lep off the baby white hc/s hz is still ati.ve?
FETAL FACTS
• Fetus Ls the 1.31in word which meats baby.
- A fetus is WO% human and suffers excruciating agony In an abortion.
P clentlikalLy speakiog, life begins at conception and is continuous Than on Unlit death.
- Every genetic tralt already determined at conception inducting the color oi skin, hall; ayas, eto_
itALQMICINISFS PROFIT OFF UTE UNINFORMED
Abortionists don't give patImis this information. 11 they did, most women would not have an abortko. in gross violaSon of basic wornen's rights, aloonfonfsts are !ricking woman into killing Their babies. Women have a right to know this important information.
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Case 1:08-cv-10066-JLT Document 132-2 Filed 08/09/11 Page 1 of 2
000422
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WOMEN W.EID HAD MPFITIrONS
It may talca a Ilfelime for a woman to roam how to Cope wIth the vaallzation that sha Wiled her vent own baby. This psychological coo:Rion Es now known a3 "Post-Abortkin Trauma'. There ate support groups mailable for thorn The Most waif known le Profact Rachel at 517-7834300,
MOSE WOMEN DIE IN LEGAL ABOITTIONA
I3Efore aboilion was lagalimel in 1073 only 39 women dad from llII ahollions. Today, over 450 wanon die a year From 094 abocifonsl Ahorifons can't ha mada We. Some complications include: Parforatad pima, Infection, lam cefirlx, blood obts, hemorrhaging, Intl:laity, and oven &an_
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Case 1:08-cv-10066-JLT Document 132-2 Filed 08/09/11 Page 2 of 2
000423
nels `DI ves k mita '11074
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Case 1:08-cv-10066-JLT Document 132-3 Filed 08/09/11 Page 1 of 2
06000el!g-IZ Case 1:08-cv-10066-JLT Document 132-3 Filed 08/09/11 Page 2 of 2
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26
Volume 1, Pages 1-59, Exhibits: None
UNITED STATES DISTRICT
FOR THE DISTRICT OF MASSACHUSETTS
- - - - - - - - - - - - - - - - - - x
ELEANOR McCULLEN, et al.,
Plaintiffs,
v. No. 1:08-cv-10066-JLT
MARTHA COAKLEY, as Attorney
General for the COMMONWEALTH
OF MASSACHUSETTS, et al.,
Defendants.
- - - - - - - - - - - - - - - - - - x
Complete Caption on Next Page
DEPOSITION OF GREGORY SMITH
Friday, May 13, 2011, 1:59 p.m.
Office of the Attorney General
100 Cambridge Street, 12th Floor
Boston, Massachusetts 02114
-----Reporter: Alan H. Brock, RDR, CRR-----
Farmer Arsenault Brock LLC
www.fabreporters.com
50 Congress Street, Suite 415
Boston, Massachusetts 02109
617.728.4404 ~ Fax 617.728.4403
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1 cut you off, so that we're not speaking over each2 other.3 A. Okay.4 Q. Also, I ask that you verbalize all of your5 responses, "yes" or "no," rather than "uh-huh" or6 "huh-uh." Okay?7 A. Okay. Did you want a "yes" on that one?8 Q. "Okay" is fine, too.9 How often do you go to the Planned10 Parenthood clinic in Boston?11 A. Once a week.12 Q. And when is it that you go?13 A. Saturday mornings.14 Q. Is there a particular time that you go?15 A. Usually from 8:00 to 9:30.16 Q. And why do you go at that time?17 A. Most appropriate for me.18 Q. It's convenient for your schedule?19 A. Because everybody else is there at the20 time. I don't get there first, but that's the21 amount of time -- you know, that's the time we22 always went.23 I don't know what kind of an answer that24 is for you.
7
1 Q. When you say there are others there first,2 approximately how many people are with you on a3 typical Saturday morning?4 A. It averages out to be maybe 10 or more,5 depending on some Saturdays there's more, some6 Saturdays there's less, so it's hard to say.7 Q. But on average, there are ten or more8 people with you?9 A. Ten or more, yeah.
10 Q. And what do you do when you're there?11 A. Well, I have my crucifix on a pole, and we12 say the rosary. And that's all. I don't yell out13 or anything like that.14 Q. Can you describe your crucifix to me,15 please?16 A. Sure. It's our Lord as depicted on all17 crucifixes, the corpus affixed to a cross. And it's18 probably about 8 feet high, because of the pole I19 have it on, so it can be seen. And there's not much20 else to say, unless you're familiar with the21 crucifix itself.22 Q. And you said you pray the rosary; is that23 right?24 A. Yes.
8
1 Q. Do you use rosary beads when you pray?2 A. Yes.3 Q. Do you pray the rosary out loud?4 A. Yes.5 Q. And do you pray in unison with the ten or6 so other people who are there with you?7 A. Yes.8 Q. Do you ever use a microphone or any sort of9 amplifier?
10 A. No, only on the second Saturday of the11 month, which is the -- which there's a larger crowd12 there on that particular day.13 Q. Tell me about the second Saturdays. What's14 the significance of that day?15 A. It's organized, more organized. It's not16 really -- there's no -- I'm not sure how much I'm17 supposed to vocalize on these things. But you're18 giving me freedom to express myself.19 There could be probably 30 to 40 people20 there, depending on the weather.21 Q. When you say they're organized --22 A. Well, in a sense where more people come, in23 that sense. There's no real organization to it,24 because it's just whoever wants to come, when they
9
1 want to come. And they know that the second2 Saturday of the month is a special day because3 it's -- Helpers of Christ -- the Helpers is the4 banner under which we go, our Lady of Guadeloupe.5 Helpers of God's Precious Infants. That's the name.6 Q. The Helpers of God's Precious Infants, is7 that the name of an organization that you belong to?8 A. So we don't belong to anything, because9 there's no dues or anything. It's just we go and we
10 call ourselves that.11 Q. Do the Helpers engage in any other12 activities, other than these second Saturdays?13 A. No.14 Q. Do the Helpers have a newsletter?15 A. They do.16 Q. Is it online or is it in hard copy?17 A. No, it's just -- it just goes in through18 the mail.19 Q. And do you receive this newsletter?20 A. I do.21 Q. What type of information is in the22 newsletter?23 A. Prayers, just things that priests have24 written, information about -- how do I put this?
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1 been there?2 A. I suppose I have. I can't say yes or no.3 It's no big deal anyway; right?4 Q. And the barrel forces cars --5 A. The white lines have been put there.6 Q. So the barrel forces cars to stay a couple7 of feet from the curb; is that right?8 A. Yes. I assume it is.9 Q. Do you keep any records of your visits to10 Planned Parenthood?11 A. I don't. There's no reason to keep a12 record, you know. No, I'd say no.13 Q. Do you report your activities there to14 anyone?15 A. No. It's pretty obvious what we're doing,16 so no need to report to anybody. It's all out in17 the public view.18 Q. What is it that you are trying to19 accomplish by praying outside of Planned Parenthood?20 A. Well, by praying I'm supporting in prayer21 our counselors so that they have success in talking22 the girls out of killing their babies. And making a23 witness -- witnessing with the crucifix, Christian24 witness, and hopefully catching the eye of the
19
1 prospective mothers that are give -- abort their2 child.3 Q. And do you catch the eye of the prospective4 mothers?5 A. I can't tell. I don't know. I don't know6 how it affects them. They're so busy going in,7 anyway; and the sidewalk counselors, once they're in8 that circle, there's nothing they can do but shout9 their message out or make it hearable, anyway, you
10 know.11 Q. Has a prospective mother ever come over and12 prayed with you?13 A. No, no. At that moment, they're not in the14 mood for it, I don't think. They're too bent on15 killing their child.16 Q. We've talked a bit about sidewalk17 counselors --18 A. Yes.19 Q. -- and what they do. On an average20 Saturday morning, when you're at the clinic, do you21 see sidewalk counselors?22 A. I do.23 Q. Who are they?24 A. There's Ruth Schiavone and there's Jean
20
1 Zarrella, who you deposed this morning. And there2 are other ones, too. I forget their names, but they3 come in later. I usually, when I'm praying out4 there, I'll often close my eyes, so I won't be5 distracted by what's going on around me, so I miss a6 lot, you know.7 Q. What do you see Ruth do?8 A. The same as all the other counselors do.9 She just tries within the delimited area to get the
10 message across to the mothers going in.11 Q. Does Ruth ever have signs with her?12 A. She always does, yes.13 Q. How large are her signs?14 A. Very varied in size. Some of them could be15 4 by -- it could be 3 feet by 4 feet or something16 like that.17 Q. Does she hold these signs?18 A. No. She puts them on the sidewalk in a19 safe place, and they just sit there -- hoping to20 catch the eye, of course, of some of the victims21 going in.22 Q. What do her signs say?23 A. Oh, a number of things. Obviously they're24 pro-life messages, you know, and they show signs of
21
1 pictures of the child -- a nice little baby and2 stuff like that.3 Q. Do any of them have text on them?4 A. Sure, sure.5 Q. Do you know what any of them say?6 A. I can't tell you right off, because, like I7 say, I'm not focusing on the signs, I'm focusing on8 what I'm doing.9 Q. Have you ever seen Ruth have a conversation10 with a woman who is headed to Planned Parenthood?11 A. Well, they all attempt to do that. It's12 not just Ruth. But every sidewalk counselor13 attempts to get the message to the girl. And of14 course, I've seen that, you know.15 Q. Have you ever heard a conversation between16 Ruth and a prospective mother?17 A. No. They're too far away from me, and the18 noise level is such that it's hard to hear in that19 area, with the trains going by, the trucks going by,20 the cars going by. Even the bicyclists come by, and21 just recently we had a bicyclist that kicked one of22 the signs and knocked it over on his way by. This23 depicts -- or at least shows us the level of24 emotional involvement that some people have in
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1 trying to get the babies killed, you know. They're2 obviously sympathetic to the abortion industry. So,3 you know, they drive by and sometimes they'll say4 "Get a job" or yell out things which you can't hear.5 But it was pretty obvious, when he kicked the sign6 over, that it made a big sound and the pieces went7 flying, you know.8 Q. So what you're referring to are people9 driving by on Commonwealth Ave. either in cars or on10 bicycles --11 A. Bicycles, yeah.12 Q. -- who comment on the signs; is that right?13 A. Yeah, sure.14 Q. Do people walking down Commonwealth Ave.15 who may or may not be going into the clinic ever16 comment on the signs?17 A. Sometimes they do, yes.18 Q. What do they say?19 A. They shout out a number of different20 things. Obviously they're not words of21 encouragement. I can't remember, you know, the22 exact words-- not that it matters anyway. But23 they're obviously not, you know, supportive of where24 we stand, you know.
23
1 Q. But they see the sign, and they're2 responding to it. Is that right?3 A. Yeah -- not only the sign, but us, our4 presence, et cetera, you know. Some of them, when5 they're going into the clinic, if a guy is bringing6 in a woman, he'll just swear at the girls and stuff7 like that. But that's because he's emotionally8 involved in what he's doing there anyway, you know.9 Q. When you say he swears at the girls, who
10 are the girls you're referring to?11 A. Well, just swears at the pro-lifers, you12 know, generally speaking. If they're having to13 raise their voice to reach the girl he's bringing14 in, obviously he's directing his swears at the15 particular counselors. And sometimes it's more than16 one counselor trying to reach them, see, so that you17 have more than one voice.18 Q. So you've observed the companions of women19 going into the clinic --20 A. I keep forgetting you're trying to keep up.21 Q. -- yelling at the sidewalk counselors.22 A. Yeah, yes.23 Q. Have you ever seen a counselor persuade a24 woman not to enter Planned Parenthood?
24
1 A. The only way I know is when they tell us2 they've saved a child, and they'll say that3 afterwards. But I can't tell at the time. Because4 sometimes they talk to them, they go in, and they5 second-think the whole thing and they come out.6 Q. How often would you say you become aware of7 a child being saved?8 A. That's the same question you asked me, how9 many I've saved.10 Q. Once a week, once a month?11 A. I'm only going there once a week; you've12 got to remember that. I'm only there for an hour13 and a half. So my knowledge of it would be limited,14 unless it happened during that time, and they said,15 "We have a save." And we'd say, "Praise the Lord.16 Thank God for the child."17 Q. Do the counselors walk over to where you're18 praying and let you know?19 A. No, they just make it -- generally tell one20 person and then tell us. It's not like we have to21 be told, but it's nice to hear it, you know what I22 mean?23 Q. Have you ever seen people outside Planned24 Parenthood wearing pro-life messages on their
25
1 clothing?2 A. Every once in a while you'll see somebody3 come in with a T-shirt with a message that's4 pro-life, yeah. Not very often, though. Usually5 they wear regular clothing, especially in the6 winter.7 Q. Have you ever seen anyone dressed in8 costume outside Planned Parenthood?9 A. No, no.10 Q. You mentioned some particular people in the11 disclosures that you filed in this case, and some of12 them we've talked about a bit, but I'd like to13 discuss them in more detail.14 A. Sure.15 Q. William Cotter, who is he?16 A. Will Cotter is the top man in the Boston17 rescue.18 Q. Is he the president of Operation Rescue?19 A. I don't know. He's the one that -- he's20 the editor of the letter, and if the president is21 the top guy, then I would call him the president.22 Q. He's the editor of the Boston Rescuer?23 A. Sure, because he writes it, yeah.24 Q. Do you ever see him outside of Planned
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1 patients of the clinic?2 A. Not really, no. I've never seen him. It3 mostly -- he's not a sidewalk counselor, and it's4 mostly the sidewalk counselors that try to speak to5 the -- but are very much precluded from that because6 of the situation.7 Q. Let's look back at Exhibit No. 12 in front8 of you. When I handed this to you, you said this9 was on Good Friday. How did you know that this
10 particular picture was taken on a Good Friday?11 A. Because of the casket and the cross and the12 number of people there. Now, the real indicators13 were the cross, which this gentleman here drags.14 What's the name of that street up the road, the next15 one? Anyway, we gather on the corner up there.16 Q. Is it Packard's Corner?17 A. I'm not sure. It's the next intersection18 there. On the other side of the street is Anthony's19 breakfast place.20 Anyway, we start up there. We gather21 there, say a prayer there, and we sing Our Lady's22 hymn on the way down when we approach here. And we23 say prayers, and somebody and -- and the young24 people carry the casket, and he leads by -- and, of
39
1 course, we use my crucifix if I'm there.2 But obviously, to me, it's Good Friday3 because of the, you know -- and actually, on Good4 Friday we say the stations of the cross. There's 145 of them. And we pray and sing those. And the6 priest is usually with us. I can't see well enough7 to see if there's a priest there.8 Q. Do you see on the left-hand side of the9 picture there's a gentleman in a red jacket holding
10 a crucifix?11 A. Yes, yeah. I don't know him.12 Q. I was going to ask if that was you, but I13 guess the answer is no.14 A. Wait a minute. Let me put my glasses on.15 I don't think it's me.16 Usually I'm over here against the17 building with the radio, the loudspeaker. We only18 use it on these -- on the second Saturday of the19 month or at this gathering.20 Q. So you use your --21 A. I wouldn't be there. It's another22 gentleman, because I wouldn't be there. I'm23 surprised the crucifix is in there. Let me see.24 Q. You use your loudspeaker on second
40
1 Saturdays and on Good Friday; is that right?2 A. Yes, just so the people can hear the3 prayers.4 Wait, that could be me. Way over there.5 I can't tell, except for the white hair. It could6 be me.7 Q. That's okay.8 A. You know what it is? It's my crucifix,9 because it's on a pole.
10 Q. That was my question: Is this what your11 crucifix looks like?12 A. Yes, yes. Okay. I couldn't see it well13 enough.14 Q. What else do you see when you're there on a15 Good Friday?16 A. As I said, I'm normally against the17 building, outside of the 35-foot zone, with my18 radio. This particular picture doesn't -- it shows19 me here. It looks like it shows me there, but I20 don't normally stand there. But normally, like I21 said, I just manage to -- say my rosary, and I22 manage the loudspeaker.23 Q. When you say you manage the loudspeaker,24 are you the one speaking into it?
41
1 A. No, because it has a Lavalier mike, and2 it's on the lapel of whoever is saying the prayer.3 Q. Is it a remote?4 A. It's remote, yeah. That's what the5 Lavalier mike is. That's a French word. Anyway, I6 just make sure it doesn't get turned up so loud that7 it gets feedback.8 Q. You're the sound technician.9 A. Yeah, I suppose you'd say that, yeah, to10 give me a good name.11 Actually, I keep the machine myself. I12 bring it in, and I maintain it, batteries and all.13 That's why it's there.14 Q. Do you own the machine?15 A. No. The machine is -- it doesn't belong to16 anybody, actually, but it was purchased so long ago,17 I can't remember. But nobody claims, you know,18 ownership of it. But, you know, it doesn't matter19 much.20 Q. You maintain it.21 A. I maintain it, yeah.22 Q. Do you see sidewalk counselors on Good23 Fridays?24 A. I'm so busy doing everything else, and all
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1 just outside of the buffer zone.2 A. Towards Acorn Street.3 Q. Towards Acorn Street.4 A. Yes.5 Q. Have you ever observed the escorts inside6 the buffer zone?7 A. We're not talking lately, now. I have from8 time to time observed them discussing and talking9 within the buffer zone.
10 Q. What were they discussing or talking?11 A. Oh, search me. I don't know. I don't12 know. Some of them, they're laughing. It's just13 small talk, most of it.14 Q. Has this been since November of 2007?15 A. I would say yes.16 Q. What else do you see the escorts do?17 A. Other than their job. They jump all over18 the clients that are going in. And of course, they19 don't have as much problem blocking them from the20 sidewalk counselors, the pro-lifers, as they did21 when this didn't exist. But right now they have22 free rein, because within -- once the -- they come23 within the surface of the 35-foot zone, they have24 free rein. They have no problem.
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1 Q. You said you see them doing things other2 than their job; correct?3 A. Well, I don't know. I don't know if it's4 their job to tell each other jokes or talk small5 talk within their zone.6 Q. What did you mean by "their job"?7 A. Obviously, their job, the reason they're8 there -- and their job being to escort the mother9 into the abortion mill.
10 Q. So tell me specifically what you've seen11 escorts do.12 A. Just standing there holding -- sometimes13 their conversations get kind of loud, and they catch14 your eye because of it. But just mostly talking,15 having coffee out there.16 Q. When someone comes who wants to enter the17 clinic, what do you see the escorts do?18 A. They surround them, and they try to block19 the counselors -- this is outside the zone. They20 surround them and they kind of block out the access21 by the sidewalk counselors by overwhelming them, you22 might say.23 Q. And how many are there?24 A. Oh, it's usually anywhere between two to
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1 four.2 Q. And you say they surround them outside the3 zone; correct?4 A. Yes.5 Q. What do they do --6 Do they go inside the zone?7 A. They follow the -- well, they escort the8 person right to the door. They escort the mother to9 the door of the abortuary.
10 Q. Do you see them talking to the people11 they're escorting?12 A. They're just directing them in. I'd say13 they probably are talking to them, but I can't hear14 it anyway.15 Q. And after they get to the door, then what16 do they do?17 A. They open up the door, let them in, and18 then they come out and go back to wherever they19 were.20 MR. DePRIMO: I have nothing else.21 RE-EXAMINATION22 BY MS. VIATOR:23 Q. I have just a couple of follow-up24 questions. You said that you don't speak into the
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1 microphone yourself when you're outside Planned2 Parenthood. Is that right?3 A. On regular Saturdays we don't bring it in.4 The only time we bring it in is on the second5 Saturday of the month or a special occasion, such as6 this. And this occasion, I don't speak into it when7 we're saying the prayers. We may make an8 announcement or something up at the other end before9 we start, you know, walking down towards the clinic.10 But I don't use it. There was a time when they11 wouldn't let us use it, you know, but we got through12 that for some reason, I guess.13 Q. But on second Saturdays and on Good14 Fridays, you do bring the amplifier with you;15 correct?16 A. Of course. I bring it with me. I walk --17 and the crowd walks down in procession. I carry it18 on my shoulder, and then I direct it towards the19 crowd so they can hear whoever is praying with the20 Lavalier mike on them.21 Q. So you operate the amplifier so that others22 may pray into it; is that fair to say?23 A. Yeah.24 Q. Looking back at Exhibit 12 in front of you:
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Exhibits 8-9 Vol. 1, Pages 1-141
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
- - - - - - - - - - - - - - - - - -
ELEANOR McCULLEN, et al.
Plaintiffs
v. CA No. 1:08-CV-10066-JLT
MARTHA COAKLEY, et al.
Defendants
- - - - - - - - - - - - - - - - - -
DEPOSITION of MARK J. BASHOUR
Wednesday, July 13, 2011 - 12:44 p.m.
Office of the Attorney General
10 Mechanic Street, Suite 301
Worcester, Massachusetts
Reporter: Jill K. Ruggieri, RMR/CRR
www.fabreporters.com
Farmer Arsenault Brock LLC
50 Congress Street
Boston, Massachusetts
617.728.4404 fax: 617.728.4403
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1 APPEARANCES:23 Michael J. Deprimo, Esq.4 778 Choate Avenue5 Hamden, Connecticut 065186 (203) 281-1496 Fax: (203) 893-93437 [email protected] on behalf of the plaintiffs910 Office of the Massachusetts Attorney General11 Gabrielle Viator, Esq.12 One Ashburton Place13 Boston, Massachusetts 0210814 (617) 963-2567 Fax: (617) 727-576215 [email protected] on behalf of the defendants171819 Also present: Jennifer Scully, Legal Intern,20 Civil Rights Division21 Joanna Lydgate22 Kiernan Joliat, AAG2324
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1 P R O C E E D I N G S2 MARK JOSEPH BASHOUR, a witness having been3 duly sworn, on oath deposes and says as follows:4 EXAMINATION5 BY MS. VIATOR:6 Q. We met a moment ago, but for the record, my7 name is Gabrielle Viator. I'm an Assistant8 Attorney General with the Attorney General Martha9 Coakley's office.
10 As you know, I'm going to be asking you a11 series of questions. I ask that you please let me12 finish my question before you start to answer so13 that the record is clear.14 A. Absolutely, yes.15 Q. And also that you verbalize all of your16 responses, "yes" or "no" rather than nodding your17 head.18 A. Yes, okay, sure, absolutely, yes.19 Q. And if you don't understand a question that I20 ask or you want me to clarify, please just let me21 know, and I'll do my best to rephrase or to clarify22 it for you.23 A. Okay, yes, okay.24 Q. To start, could you please state your name.
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1 A. Mark Joseph Bashour.2 Q. And, Mr. Bashour, you're a plaintiff in this3 case, right?4 A. Yes, I am.5 Q. There is a Planned Parenthood clinic located at6 470 Pleasant Street, right?7 A. Yes, there is.8 Q. And that clinic opened in approximately9 December of 2009, right?
10 A. Yes, it did. May have been a little bit11 before, but I remember early December, yes. I12 would say maybe very early December, yes.13 Q. Okay.14 All of the questions that I am going to be15 asking you this afternoon are going to relate to --16 when we're talking about the Worcester Planned17 Parenthood clinic, I'm talking about that clinic at18 470 Pleasant Street.19 A. Okay.20 Q. And just in the time frame since it's been open21 in early December of 2009.22 A. Yes.23 Q. How often do you go to the Planned Parenthood24 clinic in Worcester?
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1 A. I go twice a week when I'm able to, if I'm able2 to. And sometimes I go once a week, sometimes I go3 three times a week.4 It depends if there's a work conflict or5 not; but if there's no work conflict, I'll be as6 much as three times a week. And sometimes work7 conflicts prevent me from being there no more than8 once a week.9 Q. Where do you work?
10 A. I work in the City of Worcester.11 Q. Do you work for a company?12 A. Actually, I work for the state of13 Massachusetts -- actually, I work for Quinsigamond14 Community College. We're a state institution.15 Q. And what do you do there?16 A. I'm a teacher.17 Q. What do you teach?18 A. I teach world history. I teach US Government.19 I teach state and local government there.20 Obviously we talk about the Attorney General's21 Office.22 (Laughter.)23 Q. Only good things?24 A. Only good things, that's right.
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1 Q. So is it your class schedule that determines2 how many times a week you're able to go to the3 clinic?4 A. Yes, that's it. That's basically it, yeah.5 Sometimes it's just -- all mornings I'm flat out6 working the whole week. Sometimes I might have a7 free morning during the week where I can get down8 there.9 Q. Are there particular days of the week that you10 go to the clinic?11 A. Yes, I go -- when I go, it's Thursday, Friday12 and Saturday when I can go.13 Q. And why do you go on those particular days?14 A. Those are the days I believe that they're doing15 them.16 Q. What do you mean by doing "them"?17 A. I'm -- they're performing abortions on those18 days. Those are the days they're performing19 abortions, so those are the days I want to be20 there.21 Q. Why do you want to be there on those days in22 particular?23 A. So that as a counselor, if someone is going in24 for an abortion, I can hopefully persuade them not
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1 to go in for an abortion.2 Q. What times of day do you go?3 A. I go -- it can be from 9:00 to 11:00.4 Sometimes I go there early, from 8:00 to 11:00.5 Q. Is there any reason for that particular time?6 A. Because that's when there seems -- it seems7 that's when they're performing the abortions.8 Q. I believe you said you are a counselor?9 A. Counselor, yes.
10 Q. What do you do as a counselor?11 A. I try to -- I call out to people and ask them12 if they'll take literature from me and give them13 literature if they would come to that -- come to14 me. That's what I attempt to do.15 With this buffer zone, it's very hard to16 do, but that's what I attempt to do. But what I am17 here for is to tell people what I have available,18 what information we have available at Problem19 Pregnancy, how we will help them at Problem20 Pregnancy.21 And I tell them what I would -- what we22 offer them, so that's what I am doing.23 Q. When you call out to people, what do you say?24 A. When I call out to people, it's about -- I say
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1 Miss, I will help you in any way possible, any way2 possible right across the street.3 I want to show that I care about them. I4 want to show sympathy for their situation, concern5 for their situation. I want to let them know this,6 but I'm calling out to them as best I can.7 I want to sound as nonthreatening but at8 the same time, they have to hear me, too. And9 they're like --10 When I first see them, they're like 100,11 120 feet away, the closest they ever get to me -- I12 might be the closest.13 So if I'm trying to put together a few14 sentences, when I start, they would be 120 feet15 away. But the closest they get might be 80 feet.16 And I don't know if they can hear me that17 well. I'm not -- I don't want to yell at them18 because if I yell at them, they think I'm some19 crazy guy or at best they're just not going to be20 too interested in someone. That's just human21 nature.22 So I want to raise my voice because I have23 to. I don't want to raise my voice, but because I24 have to. And -- and hopefully they hear me. And I
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1 want to be as conversational as possible from 80 to2 100 feet away, which is not easy to do.3 I mean, we didn't hold this -- look where4 you are to me. We wouldn't want us to be doing5 this in a baseball diamond where I'm at first base6 and you're sitting by second base, past second base7 asking me questions. We would have to raise our8 voices. We don't want to do.9 So that's basically the situation I'm10 dealing with. But I'm trying to, I'm trying to --11 a sure amount of time let them know about the12 dangers of abortion and that we do offer help13 across the street.14 Q. How do people -- how do women respond to your15 offer for help?16 A. If they've been in the parking lot and I'm17 speaking, more often than not they're just going to18 go right in. More often than not.19 And sometimes I'm not even sure if they've20 heard me too well. I don't even know if they've21 heard me.22 Q. Do women turn to look at you?23 A. Sometimes. But when I look, I'm not sure they24 heard what I said. They kind of look this way,
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1 that way, or just open the door and go in.2 I'm not so sure -- they may have heard me3 saying something, but I'm not so sure they heard my4 words.5 Q. Where do you generally stand when you're6 calling out to women at the clinic?7 A. I stand -- the buffer zone is here8 (Indicating). The white line is here. The sign is9 here, and I'm -- I would stand usually about --
10 I try to be as close to the line as11 possible, because the further you get from the12 line, the further you are from them. But sometimes13 if there's obstruction -- it turns out if there's14 obstruction, I might go like four or five feet15 because they've got columns there, there might be16 cars there, they might not be able to see me if I'm17 right by the white line.18 So sometimes I'm as far as five feet away.19 But even if I was at the white line, it would still20 be an angle and it will still be a distance.21 But sometimes I'm further than that22 because of cars or a column being in the way.23 Q. We'll look at pictures in a bit to pin this24 down, but do you generally stand on the Dewey
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1 Street site or on Pleasant Street?2 A. Okay. More often -- I used to -- when I3 started, it was the Dewey Street side. That4 potentially would be the better side, because5 that's where people drive in. That potentially6 would be a better side.7 But the problem is there the buffer zone8 is preventing us from handing out literature from9 the sidewalk. So I can't hand out sidewalk10 literature there as I did at Lincoln Street. I11 couldn't be that effective.12 The only time I could be effective is if13 someone parked real close and then they would come14 to me. But the problem is at Dewey Street, they15 park further and further away from where you are at16 the entrance.17 I can't give them literature at the18 entrance, so what happens is because it just wasn't19 working, I figure it's better if I try Main Street.20 Maybe they can hear me for a longer period of time.21 They can't hear me at all based where they park off22 of Dewey Street.23 They just park too far. They can't hear24 me. I'm a little closer. Even this 80 to 120 feet
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1 isn't close, it's a little closer on Main Street2 where I'm standing than much more at Dewey. It's3 too far when they park in --4 Q. Do you mean Pleasant Street as opposed to Main5 Street?6 A. Did I say Main Street? I'm sorry. Did I say7 Main Street? Okay, see, they've been on Main8 Street, they were on Lincoln Street, and now9 they're on Pleasant Street.
10 Yes, when I said Main Street, I meant11 Pleasant Street. I'm sorry. I'm sorry.12 Q. So to be clear, the two entrances to the clinic13 are on Dewey Street and on Pleasant Street,14 correct?15 A. Yeah, except there's no real entrance on16 Pleasant Street. The address is there, but there's17 no drive-in entrance.18 The only drive-in entrance is at Dewey19 Street, where is where I like to be standing on20 Dewey Street handing out literature. I cannot do21 that.22 Q. At some point in time, did you stand at the23 Dewey Street entrance?24 A. Oh, yes. Not -- I couldn't stand by the
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1 entrance, but I stood at -- outside the buffer2 zone.3 Q. Did you stand on the same side of the street as4 the parking lot or did you stand across the street?5 A. Across the street. Because if you're on the6 same street, the buffer zone would have you in7 front of a sign store.8 There's two buildings and the sign store.9 So I would be in front of one building where they
10 won't be able to see me or in front of another11 where they probably wouldn't be able to see me12 either. So it had to be across the street.13 And actually, it goes across the street,14 it goes into the parking lot across the street, so15 there's further distance there. It's just a real16 long distance. Probably talking about 200 feet17 from where most cars park to where I would be18 standing, so I had to get away from there.19 Q. If you're standing at the opposite side of20 Dewey Street as the entrance to the driveway and21 you're calling out to people, would you call out to22 the cars as they entered into the driveway?23 A. What -- I would have liked to have, but I24 couldn't -- since I couldn't get close to them
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1 anyways, I didn't do it, because there's no2 purpose. I couldn't get close to them anyway.3 If I had literature, I couldn't give it to4 them anyways, so I didn't did that.5 Q. Let's imagine for a moment there was no buffer6 zone.7 A. Mm-hmm.8 Q. Are you saying that you would prefer to stand9 on the sidewalk adjacent to the --
10 A. Yes, the same side.11 Q. Driveway?12 A. Yes. If I could stand on the same side as the13 sign store and the same side as Planned Parenthood,14 if I could stand on the same side on Dewey Street15 and just hand out literature.16 Q. In order for you to hand out literature from17 that position, a car would need to stop, right?18 A. They could slow down. They could just pass19 them. Lincoln Street, it worked out. We didn't20 have any accidents.21 And Lincoln Street was the most dangerous22 turn you could ever find. We didn't have any23 accidents there. And Dewey Street is -- I'm going24 to tell you 100 times safer than Lincoln Street.
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1 We never had any accidents on Lincoln Street.2 So I'm -- it's a hundred times safer.3 Q. But focusing on the -- on the Dewey Street and4 Pleasant Street clinic, in order for you to hand5 literature to someone who's driving in, they need6 to roll down their window, right?7 A. Yeah, if they roll down their window and they8 said I'd like to have some, I would like to be9 where I could just hand out to them, be in the
10 position where I could just hand it out to them.11 That has happened before on Lincoln12 Street. Now with the buffer zone, it basically13 can't happen.14 Q. Okay.15 Back to the world where the buffer zone16 does in fact exist --17 A. Yeah.18 Q. -- where is it that you usually stand now when19 you go there?20 A. I stand on Pleasant Street.21 Q. Do you stand on the same side of Pleasant22 Street as the clinic or do you stand across the23 street?24 A. Same side.
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1 Q. If you're facing the clinic, do you stand on2 the sidewalk to the left of the buffer zone or to3 the right?4 A. If we're looking at the buffer -- from the5 across the street side, the buffer zone being here6 going like this (indicating), I am to the left. I7 am to the left of the buffer zone.8 Q. Why do you stand in that particular spot?9 A. Because they can see me from there. If I'm to
10 the right of the buffer zone right here11 (Indicating), they won't be able to see me.12 They're just going to see -- I won't be13 able to see them, they won't be able to see me,14 because I am talking to a wall and I won't see them15 because the wall is in front of me. I won't be16 able to see them.17 So it's imperative that I be on the left18 side.19 Q. Do women sometimes come talk to you?20 A. It happens very rarely. Now, it might happen21 if they're walking, I might get a chance to speak22 to them. That does happen, but this happens very23 rarely.24 As far as women who have parked -- about
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1 85, 90 percent of them park inside the parking lot2 area. Has a woman ever come to talk to me from3 there, from that spot? No.4 What has happened is a couple of times5 their boyfriends have come out and spoken to me and6 I've spoken to the boyfriend, and then he will go7 speak to her. But this happens not very often.8 Okay. I would -- and I think sometimes9 maybe if I had a chance to speak to her ahead of
10 time, I could have changed it, but she's up there11 already. He is sympathetic. He -- he is very12 much -- but she's up there. She's having the13 abortion. So this is the problem we have.14 Q. Approximately how many times since the clinic15 opened in early December of 2009 have you had a16 conversation with either a woman or someone17 accompanying a woman to the clinic?18 A. How many times. Conversation. I'd say six or19 seven times I had a good conversation with someone.20 Q. What do you define as a good conversation?21 A. Where I could speak with them, tell them what22 we do and that they're attentive. They want to23 think openly about the situation. They're ready to24 think openly about it.
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1 They're not in a mode where they're making2 excuses, but they're openly looking for another3 avenue to solve their problem.4 So I would say about six or seven times.5 Q. Can you describe for me that conversation?6 A. Okay.7 This is one of the first ones that8 happened. It happened very early in December of9 '09, one of the first times.
10 There was a woman, she parked in Dewey11 Street. She came off in Dewey Street, and she12 parked -- which doesn't happen very often, it's a13 rare event, she parked very close.14 I couldn't give out any -- hand15 information to her. She parked very close. I had16 no control of the situation, but she just simply17 walked over to me.18 And this is a rare event. She walked over19 to me. She crossed the buffer zone area. She20 genuinely wanted an alternative.21 So I had a nice talk with her and went22 into the clinic, and I called up people. And one23 of our counselors, our woman counselors indoors24 came and spoke to her, and it worked out very well.
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1 She had the alternative. She knew the2 alternative, and we took good care of her. But3 this does not happen very often.4 Q. When you say she parked close, do you mean that5 she parked close to Dewey Street?6 A. Close to Dewey Street, yes. Close to Dewey7 Street. She could have driven another 120 feet8 further away, which is what usually does happen.9 And then they usually don't come by, and I haven't
10 been able to give them any literature, and they11 usually can't even hear me from out there, so --12 Q. When you say you took her to the clinic, are13 you referring to Problem Pregnancy across the14 street?15 A. Oh, yes, yes, good question. I took her to16 Problem Pregnancy. We walked towards Problem17 Pregnancy, yes, good question.18 Q. When you stand outside and have these19 conversations with women, I believe you said that20 it happened six or seven times you had a good21 conversation?22 A. Yes, I say a good conversation, yes.23 Q. Are there times when you have a not-so-good24 conversation, a shorter interaction with someone?
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1 A. It might be a shorter one, but it's like2 they're not giving me a chance to explain what we3 do. They're basically just walking, passing by,4 and they're making excuses and they're not really5 getting interested in what I'm trying to say to6 them.7 Q. So some women who you call out to --8 A. The reason why is it doesn't happen very often,9 what I'm talking about here, it doesn't happen very
10 often, is because maybe 10, 15 percent at the most11 will walk to the sidewalk to go in.12 Q. And some of the women who walk by on the13 sidewalk hear you --14 A. Hear me, yes.15 Q. -- and aren't interested in what you have to16 say and keep walking, right?17 A. Yeah, they might, or they might be interested,18 but they're still more tied to their excuses.19 That's why I say it's not a good conversation.20 So I'm just trying to persuade them, but21 they won't give me the time to let them know the22 alternatives.23 This does happen. But 85, 90 percent, I24 won't even get that -- to speak that closely
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1 because they're driving in off of Dewey Street. I2 just never get that close to them to speak to them.3 Q. How often does a woman respond to you in any4 way, whether it's a good conversation or one of the5 short interactions?6 On average, how many times a week does7 that happen?8 A. A woman responds to me -- I might -- I might go9 two or three times a week and they don't respond to10 me if they're going into Dewey Street. They11 might -- not one woman might respond to me.12 Q. How often does a woman respond to you?13 A. Who parks on Dewey Street? Maybe one out of14 100, maybe.15 Q. Not just parking on Dewey Street.16 A. Okay.17 Q. Any woman --18 A. Overall.19 Q. -- who you speak to on the sidewalk --20 A. Okay.21 Q. -- and offer help to, how often does a woman22 say something to you in response?23 A. Per week, I would say if they're walking, they24 might take the literature, they might not. But
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1 it's tough for me to say exactly. I'm just not2 really sure how often someone walking -- the3 percentage of their --4 But on a weekly basis, might have a5 good -- you know, someone come in there, they might6 take the information that I hand to them and go7 from there.8 But this is the problem. I don't know9 from outside the buffer zone where they're going at10 that point. We have a lot of people who live in11 that area, and they're just walking straight by. I12 don't know if they're going for an abortion.13 If they're walking and I see them, I might14 not say anything to them, and then they take that15 left turn into that walking entrance. That's when16 I start speaking to them.17 I don't -- I didn't know when they were18 walking past me that they were going for an19 abortion. So I have to say most people I see are20 not going for an abortion.21 Q. So you don't try to contact -- you don't try to22 communicate with every person who walks by; is that23 right?24 A. I don't try to communicate -- I don't
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1 communicate to a person that's going for an2 abortion because most women who walk through there3 are not.4 I don't know because I'm outside the5 buffer zone, so that's -- that's part of the6 situation.7 Q. Okay.8 You said that you hand out literature?9 A. Yes.
10 Q. How often do you hand out literature?11 A. I'm there all the time to do so. As far as the12 people who are going from Dewey Street, hardly13 ever.14 Q. I'm not asking about Dewey Street.15 A. Okay, okay, yeah.16 Q. I'm asking on average, when you're outside the17 clinic --18 A. Okay, okay.19 Q. -- how often do people take literature from20 you?21 A. Okay.22 I would say maybe a couple of times a23 week. A couple of times a week someone will take24 literature from me, yes.
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1 Q. Do some people refuse the literature when you2 offer it to them?3 A. They might say that's okay, that's all right.4 I don't want it. They might say that. That5 happens sometimes.6 Q. Do you display any signs when you're outside7 the clinic?8 A. I personally do not. We have other people who9 do, but I do not.
10 Q. Do you ever pray outside the clinic?11 A. Sometimes, yes.12 Q. What do you pray?13 A. Same spot. I'll pray at the same spot.14 Q. Do you pray the rosary?15 A. Yes, I pray the rosary and other prayers, too.16 But usually the rosary.17 Q. Do you pray alone or with others?18 A. The rosary I do with others. Sometimes I'm19 there by myself, I pray privately. But when I'm20 with other people, we do the rosary together.21 Q. Do you ever use a microphone or a loudspeaker22 when you're praying?23 A. No.24 Q. Is there anything else that you do outside of
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1 the clinic while you're there?2 We've talked about your counseling and3 handing out literature --4 A. Mm-hmm.5 Q. -- and praying.6 A. Yeah.7 Q. Is there any other types of activities you8 engage in there?9 A. Types of activities? Not really, no. I'm
10 just -- I'm there to, you know, hand out literature11 and to speak to the women.12 Q. Are there usually other people there when13 you're there?14 A. Weekdays up until 10:00, there will be other15 people. After that, though, I'm usually by myself.16 And Saturdays, quite often I'm there by myself.17 Q. What are the other people there doing?18 A. They can be holding signs. That's usually --19 or they could be praying. I would usually only20 counsel -- when I'm in counseling, I'm usually the21 only counselor there.22 Q. A few minutes ago you mentioned Problem23 Pregnancy.24 A. Problem Pregnancy, yes.
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1 Q. What is Problem Pregnancy?2 A. We are a nonprofit organization, all-volunteer.3 It was an organization -- what we do is we help4 these women through these difficult times.5 We help them financially in any other way6 possible while they carry their baby, do not abort7 their baby but carry their baby and deliver their8 baby to a very happy childbirth, and from there we9 try to help them.10 If they chose to keep their baby and raise11 their baby, we help them in any way possible there.12 If they want to put the baby up for13 adoption, we help them there as well.14 Q. You said "we."15 Are you a member of Problem Pregnancy?16 A. I consider myself a member of Problem17 Pregnancy. I consider myself -- but that's -- when18 I think of Problem -- I think of what we're doing19 together as a whole, as a group. We're there in20 spirit.21 Q. And do you try to convince pregnant women or22 persuade them to go to Problem Pregnancy as opposed23 to into the Planned Parenthood clinic?24 A. Absolutely. That's what I'm trying to do, yes.
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1 Q. Have you ever been successful?2 A. Oh, sure.3 Q. How many times have you been successful at the4 Worcester clinic in particular?5 A. You mean at the Pleasant Street clinic?6 Q. Yes.7 A. Okay. One time it was just me by myself.8 That's one of the first times we talked about, the9 situation with the woman on Dewey Street parked
10 much closer than most women usually do, and then11 she came to me. Okay. That was a very fortunate12 instance.13 Other times it has happened, but we have14 had other people who are part of the process, too.15 Now, we have this woman, she's a nun, and16 there is something about this woman, this nun, that17 people are just drawn to her.18 So she was there and she was on Dewey19 Street, and she could not -- obviously she couldn't20 just give out literature inside the zone, but they21 see her and they came to her.22 So one time she was there and they called23 for me because I had to -- the office was closed at24 that time. So I had a key and I got her inside. I
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1 got everyone inside. So I was part of that. I was2 able to speak to them.3 Another time a woman came later on, and4 she was walking. She didn't go to Dewey Street,5 but she saw me on Main Street, and I got her -- she6 asked me some questions and she came to me and we7 went to Problem Pregnancy. Had a nice talk with8 her. She wanted tests, she wanted some help, and9 she learned all the alternatives to abortion and
10 did not have an abortion.11 Q. I believe you said that interaction was on Main12 Street.13 A. Yes.14 Q. Did you mean it was on Pleasant Street?15 A. Oh, yes. I'm sorry. I keep saying Main16 Street. I mean Pleasant Street. I'm sorry, I17 don't know why I'm saying -- maybe because Dewey is18 such a side street that's not that much use.19 Pleasant Street seems more like Main Street.20 But it's not Main Street; it's Pleasant21 Street, yes.22 Q. Okay.23 So the -- that, I believe, were three24 times that you mentioned that you were involved in
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1 bringing the woman to Problem Pregnancy instead of2 Planned Parenthood?3 A. Yes.4 Q. Do you call that a save?5 A. I think of it as a save when someone who would6 have otherwise had an abortion if they had gone7 into a clinic, they were there to have an abortion,8 they see me instead and they have their child9 instead. So I'll consider that a save.10 Q. Have you had any other saves other than those11 three that we just talked about outside the 47012 Pleasant Street --13 A. Yes, at 470 Pleasant Street. Are you talking14 specifically 470 Pleasant Street?15 Q. Yes.16 A. Okay. There have been others over the past17 year and a half, someone has come to me or they met18 some other counselor and that other counselor has19 come to me.20 I believe it's a couple of times through21 the nun who has the -- this gift. And we -- we've22 worked together. We've done this.23 Another time -- another woman counselor24 who is there, she may have been at Dewey Street.
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1 They talked to her. Then I went over, I spoke to2 her as well, and we call it a team effort, but we3 had another save.4 Q. So I believe if my count is right, there5 were -- we're talking about approximately five or6 six --7 A. Something like that, yes.8 Q. -- saves?9 A. Yes, five or six saves like that, yes.
10 Q. So you've been involved in --11 A. I've been involved in about five or six saves,12 yes, since we've been there in the last year and a13 half.14 Q. Okay.15 This nun that you've mentioned, do you16 know her name?17 A. Her name is Sister Mary Jeanne.18 Q. Do you know where she usually stands?19 A. She stands at Dewey Street usually. Sometimes20 she's with me at Pleasant Street but usually she's21 at Dewey Street.22 Q. Does she wear a habit?23 A. Yes, she does.24 Q. What does she do?
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1 A. It's really interesting. It's probably how she2 does it. She shows concern like everybody else,3 but somehow her concern is just transmitted. It4 comes upon people.5 Like -- it's very hard for me to explain,6 but women will come to her. They'll see her7 dressed up in her habit, and they know she's a nun,8 and somehow they just feel closer to God when they9 see her.10 They need to come to her. Different than11 if they're seeing me or most people. And they will12 see her. And it's great when this happens; but13 even with her, she's not getting to reach as many14 people.15 Q. Do you know how many people she has reached16 outside the Worcester clinic?17 A. It's tough. She doesn't come as often as I do.18 It's tough for me to say exactly how many people.19 But it does seem like when she's there, she will20 save like one person every two times she gets21 there. She will have like one --22 But again, it's -- she's not passing23 literature. It's this woman, this gift. She's a24 nun. She's a very gifted person.
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1 Q. How often --2 A. They just see her and they go to her.3 Q. How often has she been there when you've been4 there?5 A. She's there maybe once a month, every six weeks6 or so, something like that.7 Q. In your observation, does she have8 approximately one save every other time or so that9 she's there?10 A. Seems to me that way. But you have to remember11 with her, she had a lot more saves than before the12 buffer zone.13 Before the buffer zone, she could see14 people at Lincoln Street. They would come to her.15 She would save more people.16 Q. Do you keep any records of your saves?17 A. I personally do not.18 Q. Do you report your saves to anyone?19 A. It's on record, should be on record, but I20 don't report my saves. I don't say I saved that21 person. I just don't do that.22 Q. What do you mean, it should be on record?23 A. It should be on record that someone went to24 Problem Pregnancy and we're helping them. We
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1 probably got it in a logbook saying such-and-such a2 person came here.3 If they don't have it in my name down that4 I'm the one who brought them, that's fine. I never5 go there and say I was the person who brought -- I6 won't do anything like that.7 And quite frankly, I don't even try to8 remember them, because if I remember I just brought9 someone in for a save, I might not be as effective10 doing it for the next person.11 I'm always trying to deal with some person12 who's there. This could be another save. I can't13 be thinking about another previous save. It's not14 going to be in my mind.15 Q. So you don't keep any record of your activities16 there?17 A. No, absolutely not. I would say it's easier at18 Lincoln Street. Before the buffer zone, it was19 easier.20 Q. I'd like to show you what was previously marked21 Exhibit No. 1, if you can take a look at that22 document.23 A. Okay.24 Q. Do you recognize this document?
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1 A. Yes.2 Q. What is it?3 A. Do you think you may -- yes. This is something4 we pass out to people, part of what we pass out to5 people.6 We have many different pamphlets,7 brochures that we pass out to people to let people8 know what we do for them at Problem Pregnancy.9 Q. How often -- is this a brochure that you
10 personally use on the sidewalk outside of the --11 A. Yes, I sometimes pass this out, yes,12 absolutely.13 Q. Okay.14 How often do you pass this particular15 brochure out?16 A. Not as much as I would like. I wish I was17 passing out more of these. Sometimes I have them18 in my hand and it will get old in my hand, through19 the weather, whatever else, before I've had a20 chance to pass it out to anybody.21 I wish I was passing it out every day. I22 wish I could tell you every day I pass it out,23 someone gets it, but I can't tell you it's every24 day.
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1 Part of the problem is too many people2 going for abortions just are never going to even3 come close to this.4 Q. But how often do you hand out any literature,5 not -- not just this piece of literature?6 A. Okay, this -- okay, umm, I don't know. I've7 passed out literature to sometimes the wrong8 person. Someone that's going for an abortion, they9 take it. Sometimes that happens maybe once a week,
10 I'll give it to someone, and it turned out they11 weren't go in for an abortion.12 I'll pass it out to somebody else who will13 go in, but we don't hear it. So maybe once a week14 or so I can give out some -- it was a lot more15 before the buffer zone.16 Q. Generally speaking, regardless of where17 somebody goes after, are you saying that you on18 average hand out one piece of literature a week?19 A. I would say about a week, yes. Whether it's20 someone going in or not, but all together one week.21 Q. Do you generally only hand out literature to22 someone once you've initiated a conversation with23 them?24 A. I can sometimes give it beforehand, like
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1 sometimes take the literature. It might never get2 to the conversation stage.3 Again, as the people who come in through4 the sidewalk, maybe 10, 15 percent at best --5 again, somebody -- I -- they might be going into6 the clinic anyways.7 I like to reach 85 percent of the people,8 not just 10, 15 percent, and that's the problem.9 Q. I'd like to show you what was previously marked
10 as Exhibit No. 2.11 A. Okay.12 Q. Do you recognize that document?13 A. I think we do have that, though I don't think14 I've passed this one out before.15 Q. When you say "we," who are you referring to?16 A. Problem Pregnancy. I believe this is in our17 offices. I may have seen this in our offices.18 Q. But that's not a document that you've19 personally handed out?20 A. It's not one I've personally handed out.21 Q. How about Exhibit No. 3, do you recognize that?22 A. Yes.23 Q. It's two-sided?24 A. Yes, yes. Exhibit No. 3 I know very well.
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1 I've passed it out for a very long time.2 Q. Is that a brochure that you personally have3 handed out on the sidewalk outside of the Planned4 Parenthood clinic?5 A. I've passed this out where we are on Pleasant6 Street, but I can tell you I passed out a lot more7 of these before the buffer zone.8 Q. What is it that you're trying to accomplish9 outside of Planned Parenthood?
10 A. Save lives. Save lives. I'm trying to11 accomplish to save as many lives as possible,12 because every time a child is aborted, we have a13 death.14 And every time someone doesn't have an15 abortion, they go speak to us at Problem Pregnancy16 or they just decide against having an abortion,17 sometimes they decide they don't want to have an18 abortion and go to Problem Pregnancy, a human life19 is saved, and that person is going to live -- if we20 go by average, if they take care of themselves,21 they'll live 80, 85 years.22 That's a lot better than being killed in23 the womb. So that's what I'm trying to accomplish.24 Q. And you have been involved in approximately
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1 five or six saves where you were able to accomplish2 that objective in the year and a half since the3 Worcester clinic has opened, right?4 A. Since the Pleasant Street clinic was opened, I5 have been in that much -- although like I say,6 sometimes it's been an involvement, team effort.7 Some of it could have been with Sister8 Mary Jeanne or some other woman who was there, but9 it's not as much as it used to be.10 Q. But in the past year and a half --11 A. Yes, five, six. About five, six, yes.12 Q. Okay.13 So in the past year and a half outside the14 Worcester clinic, you have had some involvement in15 five or six saves, right?16 A. Yes, mm-hmm.17 Q. And that was accomplished primarily by talking18 to women on the sidewalk and by handing them19 literature, right?20 A. Yes, talking to them, showing my concern for21 them and telling them about the alternatives, yes.22 Q. Okay.23 Now would be a good time if you want to24 take a quick break, or if you're okay, we can keep
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1 going.2 A. I'll be happy to keep going.3 Q. Okay. I just wanted to check.4 I'd like to show you what has been5 previously marked as Exhibit No. 6.6 A. Mm-hmm.7 Q. Do you recognize what is shown in this picture?8 A. Yes, I do.9 Q. Where is this scene?
10 A. Okay.11 This is -- this picture would be taken12 from probably the second floor of Planned13 Parenthood on Pleasant Street, okay?14 That is Hudson Street across the -- the15 way there, where that car is coming out of, and16 this is definitely Pleasant Street.17 Q. Okay.18 And this -- in the lower left-hand19 portion, you see a white line arced there. That's20 the buffer zone?21 A. Yes, that's the buffer zone, that white line,22 yes.23 Q. Okay.24 So where you generally stand, is it in
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1 this area -- in the picture, it's to the right of2 the buffer zone --3 A. Yes. In this picture, to the right of that4 picture, yes.5 Q. In this picture, there is a man dressed as what6 appears to be the grim reaper?7 A. Mm-hmm.8 Q. Have you ever seen a person dressed in a9 costume like that during that time there?10 A. Him, yes, him.11 Q. Do you know his name?12 A. I don't know his last name.13 Q. What's his first name?14 A. His first name is Ray.15 Q. How often do you see Ray in his costume?16 A. There I see him every Thursday when I go there.17 He does go on Tuesdays, too. I went a couple of18 Tuesday, but I don't think they're doing it on this19 day, so I didn't go anymore Tuesdays, but I believe20 he still goes on Tuesdays.21 Q. When you say doing "them," you mean --22 A. Performing the abortions, yes, I'm sorry,23 performing the abortions on Tuesdays. I don't24 believe they're performing abortions on Tuesday.
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1 That's why I don't go that day.2 Q. What do you see Ray do when he goes to the3 clinic?4 A. Basically, he doesn't do much. What you're5 seeing is basically all he does. He dresses up in6 that suit and with that -- and he definitely7 doesn't do much else.8 Q. Does he try to talk to people?9 A. I don't remember him talking to anybody, but
10 interesting, one time I did hear him speaking --11 I thought he spoke very effectively, but12 he wasn't in that suit. I remember him not being13 in that suit, but I remember that at Lincoln14 Street.15 But as far as -- I don't remember him16 really talking to anybody in that suit there on17 Pleasant Street.18 Q. Have you observed people respond or react to19 Ray in his costume in any way?20 A. Little kids sometimes. They get a big kick out21 of this. But I did see one guy, he wasn't going in22 for an abortion, he told me he was very pro-life23 and he liked what we were doing, the counselors,24 but he wasn't too crazy about that.
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1 Sometimes they're parked in an adjacent2 place and they'll just go through the back side and3 we never get to see them there.4 But usually they park on Dewey Street.5 Eighty-five, 90 percent of the time, that's where6 they park.7 Q. And that parking lot is private property,8 right?9 A. Oh, for them, yes, it's -- it either belongs to
10 Serrato Signs or it belongs to Planned Parenthood.11 Q. So that's not probably that you could stand on12 whether there was a buffer zone or not?13 A. No, no, no.14 Q. Okay.15 And on the Pleasant Street side, the door16 to the clinic is set back some distance from the17 sidewalk, right?18 A. The Pleasant Street side, yes, it's set back a19 ways, yes.20 Q. And that also is private property, right?21 A. Yes, it's Planned Parenthood's property.22 Q. So you couldn't stand on that property --23 A. I couldn't stand on their property. I would be24 much closer there -- if there wasn't a buffer zone,
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1 I could be in a more linear direction.2 I would be much closer. Without the3 angle, I would be much closer. That would be a4 very -- I think much more improved spot than what I5 have now.6 It wouldn't be the best spot, but it's7 more improved. It would be an improved spot from8 what I have now.9 Q. But you would still be some distance from
10 patients when they entered the door?11 A. Yes, I would still be a distance. I would --12 without the buffer zone, I would prefer the Dewey13 Street entrance over that, but that would be an14 improvement over what we have now.15 Q. Are you still doing okay or would you like to16 take a break?17 A. No, sure, that's okay.18 Q. We've talked about Sister Mary Jeanne --19 A. Mm-hmm.20 Q. -- and some others that you've seen outside the21 clinic during your time there?22 A. Right.23 Q. I believe you mentioned that you have seen24 people holding signs, right?
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1 A. Yes.2 Q. Where have you seen people holding signs?3 A. People holding signs both on Pleasant Street,4 same side as I am, but also across the street as5 well. And we have people on Dewey Street near the6 counselors holding signs.7 Q. So when you say on Pleasant Street on the same8 side as yourself, you mean on the same side --9 A. Same side as Planned Parenthood, yes.10 Q. The same side as the Planned Parenthood clinic?11 A. Yes.12 Q. On either side of the buffer zone?13 A. No, just the same side I'm on. I don't think14 anyone really -- if we can go to that other --15 Q. Take a look at Exhibit 4.16 A. If we go to Exhibit 4, I don't know that17 anyone -- I can't remember anyone really standing18 to the left of it in that scene there. It may have19 happened, but I can't recall that.20 Q. Okay.21 Rather, people tend to stand in the spot22 shown in Exhibit 6 where the grim reaper is23 standing, right?24 A. Yes, Exhibit 6, yes. It's more likely on that
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1 side, but I'd have to say across the street. You2 get a little view of that bench there, let's say3 maybe 20 feet to the left of that bench, that's4 where the people usually stand with big signs when5 you have a 40 Days For Life or other some big event6 taking place.7 Q. I'd like to show you what's marked as8 Exhibit 5.9 A. Okay.10 Q. Is that the spot you're referencing to where11 the three people are standing in that photograph?12 A. Yes. Where those three people are standing is13 where we have a lot of people holding signs on14 certain days, yes.15 Q. What do those signs say?16 A. I -- abortion -- I can -- I'm just -- roughly17 what they say is abortion is a better alternative,18 better alternative --19 I mean, I'm sorry, adoption is a better20 alternative. Oh, my goodness, oh, please, no one21 has ever put there abortion is a better22 alternative, no. No one would do that.23 Adoption is a better alternative. Choose24 life, your mother did. That's one that I've seen
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1 across there.2 Other signs as well, saying -- basically3 it's to the effect abortion is wrong and someone4 will give out the help -- the number of Problem5 Pregnancy, pregnancy services, some signs will say6 that as well.7 Q. When you're standing on the same side of8 Pleasant Street as the clinic where the grim reaper9 is standing in the exhibit before you --
10 A. Mm-hmm.11 Q. -- are you able to read the signs that are12 across the street?13 A. Oh, yes, sure, I can read them, sure.14 Q. Do you ever notice people react to the signs?15 A. Some people driving by might -- you can have --16 some people will drive by and give you thumbs up,17 and some people will have a negative response to18 that.19 They'll voice a negative response to it,20 but that's just -- you expect that.21 Q. You mean observe other people giving other22 finger gestures?23 A. Yes, sometimes you see somebody give the middle24 finger. It's -- I've seen so many of them, but
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1 yes, you're right.2 Q. Do people ever go up and talk to the people3 with the signs?4 A. People who are walking anyways might -- I don't5 remember anyone pulling -- they might pull over6 their car for just a short -- say something and7 drive off.8 But not in a long conversation can I9 remember anyone just pulling over with their car10 and then stopping there for a long time to speak.11 I can't remember exactly that happening. It may12 have. I just can't remember it.13 Q. Do you know who the people are who stand there14 and hold signs during the time that you're there?15 A. Some of the people I know, but I would say most16 of the people that come from specific parishes17 throughout the Worcester diocese.18 Okay, someone might come from Westborough19 one day, might get someone from West Boylston20 another day, someone from Grafton another day, or21 they could come from a church from within22 Worcester, yes.23 Q. Is there a schedule that coordinates who comes24 on which days?
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1 A. I think they do have one. Each diocese has2 their own church and they make it known amongst3 themselves and probably to the diocese in general4 when they're going to come.5 But they have their schedule, and I think6 people at Problem Pregnancy -- probably no, but7 it's really about what the people at these specific8 diocese do, because they'll come in here and9 they --
10 Sometimes they'll go to a mass, but --11 earlier that day, but they'll be out there maybe12 once a month or so.13 During those 40 Days For Life you got a14 lot of different parishes coming in during those 4015 days.16 Q. What is 40 Days For Life?17 A. It's the lent period when people from the time18 of Ash Wednesday day to Easter will come out here19 and they will, umm -- they will stand with their20 signs.21 Q. Are they the -- the same signs that -- that you22 just referenced or do they have different signs23 during 40 Days For Life?24 A. They may have different ones. They could have
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1 different ones. I'm just not sure.2 Q. What do they do? Do they do anything other3 than stand there with their signs?4 A. Oh, much prayer. They're doing a lot of5 praying, a lot of vocal praying, yes, a lot of6 praying.7 Q. Approximately how many people turn out during8 40 Days For Life?9 A. You have 30, 40 people at one time, and in --10 maybe they will go and make some other people show11 up.12 But you could have 30, 40 people one day13 for that and then, I don't know, some days it might14 be more, some days less. Depends on what day it15 is.16 If we're talking a Saturday -- I don't17 know, maybe in a weekday, I've seen weekdays, on a18 Thursday, a lot of people there.19 Q. Where do the people generally stand during 4020 Days For Life?21 A. The exhibit with the three people.22 Q. Okay. That's Exhibit No. 5?23 A. Yes, Exhibit No. 5. You see those three people24 there?
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1 Q. Mm-hmm.2 A. I would say standing maybe from the bench where3 those three people are, maybe a little bit to our4 left of where these people are and to their right.5 Q. So between the -- the bench and the crosswalk?6 A. Yes, I'd say from the bench to the crosswalk,7 that's where most people would be standing for some8 of the big prayer gatherings that we have, yes.9 Q. You participate in those prayer gatherings?
10 A. Sometimes. But if it's a day when they're11 doing abortions, I'll probably be counseling across12 the street.13 But if it's a day or a time when they're14 not doing abortions, I'll be there with them, sure.15 Q. So if it is a day when they're doing abortions16 and you're on the same side of Pleasant Street as17 the clinic, you can see the people from across the18 street, right?19 A. From where I'm standing, yes, I can see them,20 yes.21 Q. Do they pray out loud?22 A. Yes. They vocalize. Yes, they pray out loud,23 yes.24 Q. Do they pray the rosary?
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1 A. Oh, absolutely, yes.2 Q. Can you hear them from across Pleasant Street?3 A. I can hear them, yes. I can hear them.4 They're -- it's pleasant. It's very -- they sound5 nice when they do it. They're not overly loud by6 any stretch of the imagination, but they're --7 I can hear. It sounds nice.8 Q. Have you ever observed anyone using a9 microphone or other amplifier while praying?10 A. I'm not sure, but I think when the bishop came,11 a couple of times he may have used that. I'm not12 sure. I could be wrong. I don't want to say for13 sure.14 We may have, but I'm not 100 percent sure15 anyone's using a microphone. It's possible.16 Q. The bishop led the prayer while he's there?17 A. He's led some prayer services, yes, he has.18 Q. Do you know how many times the bishop has been19 there?20 A. I can't tell you all together, but I can tell21 you that he was there -- he was -- I think it was22 October 14th of 2010.23 And then it was almost exactly six months24 later he was there in April, sometime around the
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1 14th, something like that.2 Could have the dates a little bit off, but3 about that time. It was about a six-month period.4 Q. Are there larger groups when the bishop is5 there?6 A. I do -- his being there will almost guarantee7 we'll have 40 or 50 people there. Almost guarantee8 that.9 We've had large groups even without him,10 but with him it's almost a guarantee we're going to11 have a lot of people there.12 Q. What's the largest group you've ever seen13 there?14 A. I'm not a person who took an actual count, but15 just here alone, we may have had 40, 50 people and16 we may have had a lot of people down on Dewey17 Street at the same time.18 So it's possible we've had upwards of19 maybe 75 people here. We might have had a few20 people over here, too, praying.21 Q. When you say over "here," you're referring to22 the same side as the clinic?23 A. Yes, the clinic side. We may have a few people24 there at the same time, so we could have had as
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1 many as --2 If you count both sides of Pleasant Street3 and Dewey Street, we may have had times we've had4 as many as 80 people. I haven't taken an actual5 count, but my approximation would be something like6 that.7 Q. You mentioned 40 Days For Life occurs during8 lent.9 Does it also occur during some other time10 of the year?11 A. We do have -- some days we'll have a big12 gathering, but it's not quite the same. We won't13 have a 40-day gathering period except during lent.14 That hasn't happened yet, anyways.15 Q. When you pray, not as part of 40 Days For Life,16 but when you pray at the clinic, do you pray out17 loud?18 A. Sometimes very quietly, sometime not at all.19 Not -- for just me, no, I don't really pray out20 loud, no.21 Q. You've mentioned seeing Sister Mary Jeanne.22 Have you observed other counselors in your23 time outside the Worcester clinic?24 A. Sure, yes, I've seen others. Pleasant Street,
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1 yes.2 Q. Who are they?3 A. We have one woman named Lori, another woman4 named Nancy. Let me see. Other counselors.5 Sister Mary Jeanne -- I guess the four of us.6 I can't think of too many others.7 Q. What does Lori do?8 A. She does -- just very nicely as best as she can9 tries to speak to women going in there.10 Q. Where does Lori stand?11 A. Sometimes on the Pleasant Street side, clinic12 side, Pleasant Street. Other times she's on Dewey13 Street.14 Q. Does she generally stand -- if you're standing15 in your usual spot on Pleasant Street, will you16 stand together or would she go do a different17 entrance?18 A. Sometimes we stand together, but generally she19 will go to Dewey Street if I'm -- if I'm at20 Pleasant Street.21 Q. Do you just coordinate that between the two of22 you?23 A. It's almost unspoken. We might talk for a24 little while, but then she'll go over to Dewey
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1 Street and do the best she can there, but it's -- I2 don't say, well, I'm here so why don't you go -- we3 kind of just meld.4 Q. You're not territorial?5 A. No, we're not really territory. We're not like6 that, no.7 Q. What about Nancy, where does she generally8 stand?9 A. Sometimes she's at Dewey Street and sometimes10 she's where I'm standing. Many times I will come,11 and when I come she'll talk to me for a while and12 then she'll go.13 Q. Have you ever observed Lori bring a woman over14 to Problem Pregnancy?15 A. I have actually, yes. I've seen her bring16 people to Problem Pregnancy. I think I've seen17 Nancy so as well.18 I've seen people -- we do not have them at19 Lincoln Street, but we do have them at Pleasant20 Street, and I think they do a real -- I think they21 do very well under the circumstances.22 I mean, considering the circumstances that23 are much tougher, I think we do pretty well.24 Q. Approximately how many times have you seen Lori
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1 walk a woman over to Problem Pregnancy?2 A. It seems to me maybe two or three times.3 Q. And approximately how many times have you seen4 Nancy walk a woman over to Problem Pregnancy?5 A. Maybe two or three times I've seen them, yes.6 Q. And how many times have you seen Sister Mary7 Jeanne bring someone there?8 A. Probably a little more than that, maybe four or9 five times at Pleasant Street.10 Q. So that's in the past --11 A. In the past year and a half.12 Q. -- year and a half?13 A. She only goes there about every six weeks,14 though. That's -- I wish she could go there more15 often, but she's only six weeks.16 So with her, it's a little more, but based17 on a fewer amount of times that she goes there.18 Q. Mm-hmm.19 A. But again, with her, they see her and they --20 they see her in her vestment. They see her with he21 r habit. Something different happens that does not22 happen with me.23 Someone like me, I would have much more24 success if I could talk to them, hand out the
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1 information.2 Situation where people are drawn in some3 way to her.4 Q. Other than Lori and Nancy and Sister Mary5 Jeanne, have you observed anyone else outside the6 Worcester clinic handing out literature?7 A. Handing literature? Hmmm. I can't recall any8 specific person handing out literature.9 Q. Now, in this case you provided some information
10 through your attorney. You identified some11 individuals who may engage in activities outside12 the clinic.13 One of the people you listed was Rod14 Murphy?15 A. Okay. I did not mention him myself, I don't16 think. He's a director of Problem Pregnancy. He's17 been the director for a very long time.18 Q. Does he ever engage in -- in counseling or19 holding signs outside the clinic?20 A. I don't think he does. I don't think I21 remember Rod being a counselor, nor can I envision22 him ever holding a sign either.23 Q. Who is Tom Quinn?24 A. Okay. Tom Quinn is a person who is on a
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1 wheelchair. He has cerebral palsy. He cannot walk2 beyond going -- he can barely just use his feet to3 get from the wheelchair to a car, but he really4 does not have a walking ability.5 But he's been there twice a week, and he's6 been there as much as three times a week. And he7 is something. He's been doing this since the mid8 '80s, so Tom Quinn is a long-time person.9 I think he wishes he could be a counselor,
10 but his voice is barely audible.11 Q. Does he hold a sign?12 A. Sometimes he holds a sign; sometimes he does13 not. But he's always making -- his presence there14 is a statement.15 Q. What does his sign say?16 A. Something to the effect of keep your child -- I17 just can't remember. Adoption is a better choice.18 Things of that nature.19 Q. It's a sign that expresses a pro-life20 viewpoint, right?21 A. Expresses a pro-life viewpoint, yes.22 Q. Who is Fred Moriarty?23 A. Fred Moriarty, okay. Fred is a person who says24 the prayers. He very rarely comes on a weekday
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1 because he's just working throughout the whole2 week, but he comes on Saturdays sometimes.3 And Fred is a person who says the4 prayers -- he's a witness. His being there is5 nice. I think sometimes he holds signs, but I6 think he's usually praying the rosary while he's7 there.8 Q. What do you mean by a witness?9 A. Well, a witness saying this is an abortion10 clinic and it's -- there's some of us out there who11 don't approve of what they do and we disapprove of12 what they do enough to come out here and pray that13 we can save lives from there and just pray for the14 lives that we don't save, for the lives that matter15 to us even if we can't save them.16 So he's one of those people who comes17 there, you know, as a witness, prays there as a --18 who can save as many lives as possible, but we're19 praying for people who we couldn't save.20 Q. Does he carry any sort of sign with him?21 A. I can't recall him recently holding a sign22 there, but he may have. I just can't remember.23 But when I think of Fred, I don't think of him24 holding a sign.
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1 Q. But he generally doesn't try to initiate2 conversation?3 A. No, he does not try to initiate conversation,4 no.5 Q. Who is DePatua?6 A. DePatua, yes.7 Q. Who is he?8 A. He usually has a sign. He is a person who's9 been going there. He will go twice a week. He's
10 been doing it practically every week going back to11 mid '80s.12 He -- well, he's just someone who is just13 very incredibly reliable. He's just there. He's a14 rock and he will have a sign and he's just there.15 The sign protesting, letting people know what they16 do inside there.17 Q. What does his sign say?18 A. He's had a few different ones. I can't19 remember exactly what they say, but it's usually20 something to the effect of adoption is a better21 choice.22 Q. Who is Fran White?23 A. Fran White is another person who has been there24 for a long time. He holds a sign. I can't
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1 remember what his sign says either. I guess it's2 the little things I don't always remember.3 But he's never had the same sign. He has4 different signs. He's there holding a sign as5 well. He's very consistent. He will be on the6 weekdays as well.7 Q. Where does he generally stand?8 A. He stands generally the clinic side of Planned9 Parenthood but sometimes he goes to Dewey Street as
10 well.11 Q. So he generally stands on the clinic side of12 Pleasant Street?13 A. Yes, yes, the clinic side of Pleasant Street,14 yes.15 Q. Or over --16 A. On Dewey Street, yes.17 Q. -- across the street from the entrance on Dewey18 Street, right?19 A. Yes, across from the entrance on Dewey Street.20 Q. And who is Jay Guilliette?21 A. Jay will come and he'll do prayers on22 Saturdays. I don't think you'll ever see him on a23 weekday because he's working at that time. He24 cannot come. But he'll come on a Saturday and he
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1 It's costing lives, and that's -- it's -- before we2 had it at Lincoln Street, we saved more people.3 Then they had at that time -- they imposed at4 Lincoln Street --5 It costs people their lives, so that's why6 I'm against it.7 Q. Where do you live?8 A. I live in Northborough.9 Q. Have you ever been arrested?10 A. No.11 Q. Have you ever been a plaintiff in any other12 lawsuit?13 A. No.14 Q. Have you ever been a defendant in any other15 lawsuit?16 A. No.17 Q. That's all I have at this point.18 A. Okay.19 MS. VIATOR: I turn it over to Attorney20 DiPrimo.21 MR. DiPRIMO: Want to take a break? We've22 been going now for about an hour and a half.23 MS. VIATOR: I highly suggest you step24 outside into the fresh air.
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1 MR. DiPRIMO: Okay.2 THE DEPONENT: Okay, sure. All right.3 MR. DiPRIMO: Thank you.4 (Recess.)5 EXAMINATION6 BY MR. DiPRIMO:7 Q. Mr. Bashour, how long have you been engaged in8 pro-life counseling?9 A. Pro-life counseling, I would go back to the10 latter part of the year of 1984. There were five11 years I lived outside the central Mass. Area when I12 didn't do it because I was not near an abortion13 clinic, so I was not able to do it.14 But since I've -- since 1984 and I lived15 in the central Mass. Area, it's been over five16 years I've done it.17 Q. Just so we're on the same page, what do you18 mean by the term "pro-life" counseling?19 A. Speaking to women, letting them know the20 alternatives to abortion and the attempt to save21 the child in her womb.22 Q. Okay.23 I may use the term "pro-life counseling"24 and "counseling" interchangeably during this
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1 deposition, okay?2 A. Sure.3 Q. If I use the term "counseling," I'm talking4 about pro-life counseling.5 A. Yes, sure.6 Q. I think you indicated earlier you had engaged7 in pro-life counseling at Planned Parenthood in8 Worcester on Lincoln Street; is that correct?9 A. Yes.10 Q. And when did you start doing that?11 A. When they started, which would have been -- I12 believe it was January -- no, could have been13 January-February of 1993 is when they started14 there, that -- at that building there.15 Q. So how long did you actually go out there and16 offer counseling at the Lincoln Street facility?17 A. I would go there I guess two or three times a18 week where they were on Lincoln Street.19 Q. Okay.20 I was actually trying to get to how many21 years when you were doing it there.22 A. How many -- oh, okay. I was there from early23 '93 to the end of '94, and then I moved away.24 Q. Okay.
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1 A. I moved away for three years, but I came back2 to worcester In early '98, and then I started3 again.4 Q. Okay.5 From 1998 until what time, what year did6 you continue to --7 A. To the present, to the -- until they ended --8 until they ended, which was say November-December9 of '09, I was there at Lincoln Street, yes.
10 Q. Okay.11 And you stopped counseling at Lincoln12 Street in November of '09 because Planned13 Parenthood moved to the present address on Pleasant14 Street; is that correct?15 A. Yes, absolutely.16 Q. Can you describe a little bit what the physical17 layout was on Lincoln Street?18 A. Okay. It was a little bit different. You had19 Lincoln Street, you -- the street -- the street20 goes downhill a little bit. You had an entrance.21 You had one entrance to come into, and you had to22 go out the other entrance. One exit.23 We had an adjacent building. We owned24 property adjacent to that so we could be up in the
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1 A. No. Nancy has been very good. I don't think2 she started until we moved to Pleasant Street. She3 started soon afterwards. Both she and Lori started4 their work as counselors once everything started at5 Pleasant Street.6 They were not there at Lincoln Street. I7 have no memory -- I just don't think they were ever8 there. I was there practically all the time, so9 no, they would not have been there.
10 Q. So you've never observed Nancy Clark attempt to11 distribute literature prior to the enactment of the12 35-foot buffer law; is that correct?13 A. Absolutely not, absolutely not. I know she14 wasn't there. She might have -- you can always say15 maybe she was there a day you weren't, that's16 always possible, but knowing -- I just --17 She was not there. She wasn't. I was18 there almost every day, year after year.19 Q. Can you estimate for us how many hours you've20 been attempting to counsel at the Pleasant Street21 Planned Parenthood facility within the past year?22 A. How many?23 Q. Hours.24 A. Hours, okay.
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1 Q. Within the last year.2 A. Okay. Within the last year. Sometimes -- on3 my schedule, of course. Let's see.4 (Pause.)5 A. Say for 50 weeks, a couple weeks I've been6 away, but say for about 50 weeks, 250, maybe 2757 hours, something like that.8 Q. During that 275 hours that you were at Planned9 Parenthood, you had an opportunity to observe the10 goings on around the clinic; is that correct?11 A. Yes.12 Q. Of those 275 hours, how many hours do you think13 you were actually standing on the Pleasant Street14 side?15 A. In the past year, almost all of them. I may16 have spent a little time on Dewey Street, but not17 that much.18 Q. Of all the time you were out there at the19 Pleasant Street facility, did you ever see any20 vehicle enter into Planned Parenthood's parking lot21 from Pleasant Street?22 A. No, that's impossible. You can't.23 Q. Why isn't it possible?24 A. There's no -- there's no driveway that's wide
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1 enough to take any vehicle.2 Q. What is the physical characteristics of that3 Pleasant Street entrance at this time?4 A. It's a walkway. You can walk through this, and5 you can go through these walled units. You walk6 past the walled units, but there's -- there's just7 no room for any -- there's no room for any8 automobile.9 The smallest automobile in the world10 cannot fit on this -- it's a walkway. It's not an11 automobile way.12 Q. When you say "walled units," do you really mean13 that there's a fence erected in that area?14 A. There's a fence there, yes.15 Q. Okay.16 A. So you couldn't get a car through there if you17 wanted to.18 Q. And the fence pretty much runs the entire19 length of Planned Parenthood?20 A. Pretty much, yes. Pretty much the entire21 length, yes.22 Q. Attorney Viator asked you how many saves that23 you may have been involved in since your time with24 Pleasant Street.
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1 Correct me if I'm wrong, but I believe you2 said five or six?3 A. Five or six.4 Q. And that's in approximately one and a half5 years, correct?6 A. One and a half years, yes.7 Q. How many saves would you like to have had8 during that period?9 A. I would like to have -- realistically, I would
10 like to save every person that ever drove in there,11 every life. And if I only saved 99 percent, I feel12 bad for the one percent, but it's not like that. I13 wish I could have saved a lot more.14 Q. Okay.15 And how many cars did you see enter into16 the Planned Parenthood facility during that17 year-and-a-half period, approximately?18 A. Twelve -- let's say -- let's say I'm there 12519 days, 12 -- let's say I've seen maybe -- if I'm20 doing my math correctly here, I've seen maybe 125021 cars there, inside there, yes.22 Q. Okay.23 So you've seen about 1250 cars enter the24 parking lot?
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Exhibits 1-7 Vol. 1, Pages 1-94
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
- - - - - - - - - - - - - - - - - -
ELEANOR McCULLEN, et al.
Plaintiffs
v. CA No. 1:08-CV-10066-JLT
MARTHA COAKLEY, et al.
Defendants
- - - - - - - - - - - - - - - - - -
DEPOSITION of NANCY CLARK
Wednesday, July 13, 2011 - 10:07 a.m.
Office of the Attorney General
10 Mechanic Street, Suite 301
Worcester, Massachusetts
Reporter: Jill K. Ruggieri, RMR/CRR
www.fabreporters.com
Farmer Arsenault Brock LLC
50 Congress Street
Boston, Massachusetts
617.728.4404 fax: 617.728.4403
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1 APPEARANCES:23 Michael J. Deprimo, Esq.4 778 Choate Avenue5 Hamden, Connecticut 065186 (203) 281-1496 Fax: (203) 893-93437 [email protected] on behalf of the plaintiffs910 Office of the Massachusetts Attorney General11 Gabrielle Viator, Esq.12 One Ashburton Place13 Boston, Massachusetts 0210814 (617) 963-2567 Fax: (617) 727-576215 [email protected] on behalf of the defendants1718192021 Also present: Jennifer Scully, Legal Intern,22 Civil Rights Division23 Joanna Lydgate24
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1 P R O C E E D I N G S2 NANCY CLARK, a witness having been duly3 sworn, on oath deposes and says as follows:4 EXAMINATION5 BY MS. VIATOR:6 Q. Good morning, Ms. Clark, we just met. My name7 is Gabrielle Viator. I'm an assistant Attorney8 General. As you know, I'm going to be asking you a9 series of questions here this morning.
10 To start, could you please state your11 name.12 A. Nancy Clark.13 Q. When I ask you the questions, as you can see,14 we have a court reporter writing down everything we15 say.16 A. Mm-hmm.17 Q. So to keep the record clear, I'm going to ask18 that you let me finish my questions before you19 answer and also, that you verbalize all of your20 responses, "yes" or "no" instead of "uh-huh" or21 nodding.22 If you don't understand a question that I23 ask, please just let me know, and I'll do my best24 to clarify or to rephrase. Okay?
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1 A. Okay.2 Q. All of the questions that I'm going to ask you3 deal with time since the current buffer zone law4 was enacted in November of 2007, okay?5 A. Okay.6 MR. DiPRIMO: Can I just interject really7 quickly?8 My understanding is that Planned9 Parenthood moved to the current facility in
10 December --11 MS. VIATOR: That was my next question.12 MR. DiPRIMO: December of 2009, I think.13 THE DEPONENT: What's the question?14 BY MS. VIATOR:15 Q. The facility in Worcester, the Planned16 Parenthood facility opened in approximately17 December of 2009, as Attorney DiPrimo said.18 Is that correct?19 A. Yes.20 Q. You're a plaintiff in this case, right?21 A. Yes.22 Q. How often do you go to the Planned Parenthood23 clinic at 470 Pleasant Street in Worcester?24 MR. DiPRIMO: Could I just interject
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1 really quickly?2 The first thing you said was your3 questions were going to pertain from November 1st4 of 2007 to the present.5 Are we going to be bouncing back and forth6 between Lincoln Street, which is where I think the7 old facility was, compared to Pleasant Street,8 where the new one is?9 MS. VIATOR: No. Let me be very clear.
10 BY MS. VIATOR:11 Q. The questions that I ask you with regard to 47012 Pleasant Street --13 A. Okay.14 Q. -- and the Worcester Planned Parenthood clinic15 are all relating to the clinic as it's currently16 located at 470 Pleasant Street.17 A. Okay.18 Q. So I'm only asking you questions that relate19 since December of 2009.20 A. Okay. That's easy. Okay.21 Q. How often do you go to the Planned Parenthood22 clinic in Worcester?23 A. Two to three days a week.24 Q. Have you been going there since it opened?
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1 A. Yes.2 Q. What days do you typically go?3 A. Those fluctuate, but there's a steady Thursday,4 I'm usually always there. Friday, if I -- and5 Saturdays, every other Saturday, and then the other6 days, I might pick up a Tuesday or Wednesday if I7 notice that they may be doing abortions on those8 days.9 Q. Why do you go on those particular days?
10 A. Those seem to be the days that they are doing11 abortions. It doesn't take much to see that, and I12 am there to try to give information to girls before13 they head in there.14 Q. How do you know those are the days they're15 doing abortions?16 A. I'm not really sure. Just -- we just know.17 The activity, it's -- it's very -- much busier on18 those days.19 Q. Are there more patients --20 A. Yes.21 Q. -- going to the clinic --22 A. Many more go in on the days that they're doing23 abortions.24 Q. What times of day do you go?
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1 A. I try to go in the morning, but even that2 fluctuates. People will tell me -- you know, I've3 been there before in the afternoon, too, but in4 general, I try to go between, like, 9:30 and 11:30,5 you know.6 Q. Why do you go at that time?7 A. That's when I can get there. That's the8 only -- only the reason.9 Q. You mentioned that you sometimes pick up a
10 Tuesday or a Wednesday?11 A. Mm-hmm.12 Q. Is there a set schedule for when people go to13 the clinic?14 A. No, no.15 I -- I go by sometimes if I have a little16 time, and I'll park and get out, and I also pray17 while I'm there, so I'll do a -- I'll be praying18 and do a rosary. Gives me time. And I -- I don't19 really pick a specific time.20 Like I said, when I can get there.21 Q. What do you do when you're there?22 A. I pray. I do -- I'll do a rosary usually,23 and -- and then I just stand there and pray. And24 if -- I try to talk to girls, try to offer them
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1 assistance.2 I do tell them that there is other3 options. If they would like, we could help.4 Q. How do you initiate these conversations with5 girls?6 A. When I'm standing across the street, if I see7 people heading into the door, which I have to raise8 my voice and yelling basically across the street9 that if they need any assistance, we do counseling
10 across the street for free.11 That's basically what I say, because I'm12 yelling and I use the word "free," because "free,"13 everybody listens to "free," you know?14 Q. You said you stand across the street.15 What street is that?16 A. Pleasant. Pleasant Street.17 Q. And where in relation to the Planned Parenthood18 clinic are you standing?19 A. You got the clinic, Pleasant Street, and I'm20 usually standing right there, you know, almost by21 the -- a little over by the -- there's a bus stop22 there, so I'm a little over usually so I can see23 the door.24 Q. When you say they do counseling across the
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1 street for free, where is it that they do this2 counseling?3 A. Problem Pregnancy. We're right across the4 street.5 Q. What is Problem Pregnancy?6 A. It's an agency, it's all volunteers, and we7 basically help girls that have gone in there8 willingly that are in a scared pregnancy, and also9 we have helped girls that have decided that
10 abortion isn't the right thing for them and we just11 try to help.12 Q. How do girls respond when you talk to them?13 A. It all depends. You will get some girls that14 are obviously very set in their decision and they15 don't want to talk to anybody, but then I have had16 girls, you know, crying and scared about what they17 are about to do, and hopefully that's when I've18 stepped in sometimes.19 And I've definitely told them that there20 are other options. We are free, you can come in21 and listen to what we have to say; but at the same22 time, it's your choice. If you don't like what we23 have to say, you can walk out right across the24 street, but at least you will be more informed in
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1 what you're doing or more set in what you're doing,2 because some girls will be crying before they go in3 there.4 Q. Girls that -- that I believe you said were very5 set in their decision, do they just keep walking --6 A. They keep walking. You can tell. I can7 basically tell.8 When I first started doing this, I would9 be maybe a little more aggressive in the sense --10 but, you know, they're set and they know what they11 want to do, and all I do is just let them know if12 they change their mind, we're here.13 And I usual saying something no matter14 what, because that's just how I am, but it's15 usually something like, you know, we're here if you16 change your mind, and that's it. And usually --17 they're set, though. They're walking in and18 they're set.19 Q. And the girls that you do speak with, tell me20 about those conversations.21 A. They range. They range from girls that are22 very confused and don't know what to do and they23 had gone to Planned Parenthood first and sometimes,24 you know, you get an 18-, 19-year-old that's
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1 thinking, well, that's all I can do, and then I2 will tell them that there's -- there are other3 people that will help.4 There are people that could help you5 financially. There are people that could help you6 with anything that you need, and I -- and I give7 them that option. That's -- that's all I try to8 do.9 I've had girls stand there -- I had one
10 girl tell me she had got beat up. She was excited11 about her pregnancy -- and you should have seen12 this girl. She was beat up because she had told13 her boyfriend that she was pregnant and she -- she14 wanted the baby, but he didn't, and this girl was,15 you know, black and blue all over.16 So what I did then -- she wasn't ready to17 go in -- she was going to have the abortion because18 she was angry at him but not because she really19 wanted the abortion.20 So because I was there, I got to get her21 to go into at least our place. I says we're free,22 maybe we can refer you to somebody else, because23 she obviously needed some kind of protection or24 something.
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1 So I talked to her and we got her in2 there, and I don't know what happened after that.3 I don't -- she didn't --4 But she -- I'm glad I spoke to her that5 day, because she wasn't ready -- she was going in6 for the --7 You know, you can't have an abortion8 because you're angry at somebody. That's not the9 right mindset, and that would scar her for the rest
10 of her life, and that's what I told her.11 I said you need to at least calm down,12 speak to other people, find out if there's any13 other options before you go in there.14 Q. That was a conversation that you had with15 her --16 A. That was a conversation that I had with her.17 Q. If you can please remember to let me finish my18 question so that the record is clear.19 That was a conversation that you had with20 her on the sidewalk across the street from the21 clinic?22 A. Across the street, yes.23 Q. And when was that?24 A. I don't recall.
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1 Q. Was it within the past year?2 A. Yes.3 Q. Did the girl in that instance cross the street4 to come talk to you?5 A. She was on the side. She was on the side that6 I was standing. She was -- she had parked in the7 wrong parking lot.8 Q. So you had this conversation on the opposite9 side of Pleasant Street past the clinic?
10 A. Yes, we were on the opposite side.11 Q. Before she crossed the street to --12 A. Yes, before she crossed the street.13 Q. Do you often speak with girls who are coming14 that way to the clinic?15 A. Not -- not too often.16 Q. Do girls ever cross the street to come talk to17 you?18 A. Very rarely. I would say maybe one percent19 chance that I will get a girl to cross to street to20 talk to me.21 Q. Approximately how often do you have a22 conversation with a girl?23 A. In a course of a day that I'm there?24 Q. Yes.
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1 A. Maybe one a week.2 Q. So approximately once a week you have a3 conversation with a girl outside of --4 A. Maybe.5 Q. -- the clinic?6 A. Mm-hmm.7 Q. On average, you talk to a girl about once a8 week outside the clinic?9 A. It's hard to say. There's a week I can go
10 without talking to anybody. It is not a steady11 thing.12 But I can be out there for four, five13 hours in a week and not talk to anyone, but then I14 will have a week that I will end up, you know,15 speaking to one or maybe two girls.16 But it's very -- I -- I'm not very lucky,17 so to speak.18 Q. When you do have a conversation with a girl19 outside of the clinic, how long does that20 conversation typically last?21 A. It all depends on how her heart is and where22 she is.23 If she's set in her decision, she may talk24 to me for a couple of seconds and continue on.
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1 If she is not set in her decision, she2 will ask questions, take my pamphlet, look at it3 and ask more questions, and that could go on maybe4 five minutes.5 Q. You mentioned a pamphlet.6 Do you generally hand out pamphlets when7 you're outside the clinic?8 A. Yes.9 Q. How often do people take the pamphlets from10 you?11 A. It's not too often.12 Q. Do you generally only hand the pamphlets out to13 girls that you've started a conversation with?14 A. That willingly want it, yes.15 Q. How many pamphlets do you typically hand out in16 a day at the clinic?17 A. In a week, maybe one.18 Q. Do people sometimes refuse to take the19 pamphlets?20 A. Yes, yes.21 Q. Do they tell you that they don't want22 information?23 A. Oh, yes, yes.24 Q. What do they say to you?
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1 A. Oh, they'll swear at you, you know, mind your2 f-ing business, you know. They get offended3 sometimes. It's their right. It's their right.4 Q. Do you display signs when you're outside the5 clinic?6 A. No. Sometimes I have. I have on occasion. So7 say I have on occasion.8 Q. When have you displayed signs?9 A. When I don't plan on talking to girls.
10 Q. Are there particular days that you plan on11 talking to girls and other days that you don't?12 A. No, no, it's just -- sometimes I just don't13 feel like counseling, because it is hard, and so14 I'll just go over and do a rosary, and I hold a15 sign that will say "Face It, Abortion Kills."16 Q. Why don't you hold that sign on days when you17 want to talk to girls?18 A. Because I don't think it's effective when19 you're holding a sign.20 Q. Why don't you think you're as effective?21 A. Because when you're holding a sign that says22 "Face It, Abortion Kills," right off the bat the23 girl is thinking that you're only thinking of24 that -- the baby.
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1 When I'm counseling, the last person I'm2 usually thinking of is the baby. I get in a3 different -- I am thinking of the girl, the4 situation she may be in, and hopefully we can help5 her.6 Q. Where do you usually stand with your sign?7 A. Usually right in front of the clinic on the8 clinic side when I hold the sign, and I'll stay to9 the left there, and I just walk back and forth.10 Q. If I understand you correctly, you'll stand on11 Pleasant Street?12 A. Pleasant Street.13 Q. To the left of the buffer zone?14 A. If you're looking out the building, if you're15 in Planned Parenthood, you would be to the right of16 the buffer zone.17 Q. And if you're facing the building, you're on18 the left?19 A. I'm on the left, yes.20 Q. On the sidewalk -- on same side of the street?21 A. On the sidewalk, on the same side.22 Q. On the occasions when you do hold that sign, do23 people seem to notice the sign?24 A. Yes.
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1 Q. How do people respond to the sign?2 A. All different kinds of reactions.3 Q. What are those different reactions?4 A. You get the toots and, yeah, then you get the5 finger and "Get a life."6 Q. You get those reactions from people in cars who7 are driving by?8 A. Yes.9 Q. Do you get those reactions from people who are
10 walking by?11 A. Yes.12 Q. Do you get those reactions from people who are13 entering the clinic?14 A. Not too -- no, usually no.15 Q. When you're holding a sign, do girls ever come16 over to talk to you?17 A. On one occasion I actually -- I had a -- I18 actually had a save one day. I was there not --19 not expecting to --20 Obviously I was there to do the rosary and21 just hold a sign, and a girl came out of the clinic22 and came over to speak to me and asked me why I23 held the sign.24 I said I really don't know. I feel
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1 like -- I do it once in a while. I have no set2 thing. And then we got into a conversation, and3 she decided not to go back in.4 Q. When was that?5 A. Last year.6 MR. DiPRIMO: I'm sorry, did you say last7 year?8 THE DEPONENT: Last year sometime. I9 don't know -- I wouldn't be able to give you a
10 specific date. It was definitely last year.11 Q. Do you recall what season it was?12 A. No.13 Q. Were you holding the sign in that -- the same14 spot that we just talked about?15 A. Yes, I was standing on that side.16 Q. On the -- if you're facing the clinic, on the17 left side of the buffer zone on the sidewalk?18 A. Mm-hmm, mm-hmm, yes.19 Q. You also mentioned that you pray the rosary20 when you're there; is that right?21 A. Yes, I do.22 Q. Do you use rosary beads when you pray?23 A. Sometimes, yes.24 Q. Do you usually pray alone or with others?
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1 A. All depends. Sometimes people will show up and2 we'll do a group thing, but most of the time I'm3 usually standing there doing it alone.4 Q. Do you pray out loud?5 A. No.6 Q. Where do you usually stand when you pray?7 A. Across the street from Pleasant Street. Across8 Pleasant Street.9 Q. So when you pray, you usually stand across the10 street, across Pleasant Street from the entrance to11 the clinic?12 A. Yes, and I'll be facing the clinic.13 Q. Is there anything else that you do when you're14 outside the clinic?15 A. No.16 Q. How do you get to the clinic?17 A. I drive my car.18 Q. Where do you park?19 A. Usually Problem Pregnancy. Sometimes at20 Blessed Sacrament, which is a church down the21 street.22 Q. Do you display any signs on your car?23 A. Oh, no. Just Go Marine Corps. I have a son in24 Marine Corps.
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1 He's over in Afghanistan right now, so2 yes, I have a sign "Go Marine Corps."3 Q. That's good.4 We talked about your standing across the5 entrance to the clinic on Pleasant Street across6 the street?7 A. Yes.8 Q. And also standing if you're facing the clinic9 to the left of the -- the buffer zone there on the10 sidewalk.11 Is there anyplace else you typically stand12 when you visit the clinic?13 A. Once in a while I'll stand on the Dewey Street14 side. Very rarely, though.15 Q. How often would you say you stand on the Dewey16 Street side?17 A. If I'm over there ten times in a month, I'm --18 I might go over there for 15 minutes of the time.19 Once -- I don't particularly like standing20 over there. I don't know why.21 Q. Is there any particular reason you stand on the22 Pleasant Street side?23 A. Yes.24 Q. What is that reason?
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1 A. I can see the door where the girls are going2 in, and I also can -- there are other parking lots3 on Pleasant Street they may pull into by accident,4 and I have access to those.5 Q. Now, the parking log that belongs to Planned6 Parenthood is on the Dewey Street side; is that7 right?8 A. Yes.9 Q. In your observation, do girls often park in
10 other parking lots in the area?11 A. No. They did in the beginning but not anymore.12 Q. Are there other lots in the area?13 A. There is.14 Q. In your observations, are there any other ways15 girls arrive at the clinic?16 A. I've seen girls get dropped off in like a --17 they're like taxis but they drive, like, Lincolns18 and they show up and drop them off.19 Q. Are the girls dropped off on the Pleasant20 Street side?21 A. They're dropped off in the parking lot. You'll22 see them pull in.23 Q. Have you observed girls take public24 transportation into the clinic?
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1 A. Yes, yes. We had a girl get off the bus one2 time where I was standing and we offered her some3 help.4 Q. Where is the bus stop?5 A. From where I'm standing, it's a little to the6 left. Right on the same side across the street on7 Pleasant Street.8 Q. When you spoke with that girl that day, tell me9 about that conversation.10 A. I didn't have that conversation.11 Q. Did you observe someone have the conversation?12 A. No, they just informed me that they had talked13 to a girl that had got off the bus.14 Q. So someone told you that they spoke with the15 girl who got off the bus?16 A. Yes, there was a few people that particular17 day, and I guess she got off the bus; she stopped18 to talk to him. But I was not there.19 Q. Who told you that?20 A. I don't know his last name. We don't know a21 lot of last names over there. His name was22 Patrick.23 Q. Approximately when was that?24 A. It was during the 40 Days For Life campaign.
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1 Q. What is 40 Days For Life?2 A. It's a campaign that they run that -- I'm not3 really too familiar except that I show up for the4 40 days.5 It's a -- it's more like a Catholic thing,6 and they try to get churches involved to be over7 and pray in front of the clinic, silent prayer.8 Or, you know, just stand there peacefully and pray9 for an end to abortion.10 Q. Who organizes it?11 A. Lee Crowley is one that I know, and then the12 other one I don't know.13 Q. When is 40 Days For Life?14 A. Typically during Lent, during the Catholic Lent15 calendar year. And then they will have another16 one -- they do another one. It's I think in the17 fall.18 Q. Approximately how many people show up outside19 the Worcester clinic for 40 Days For Life?20 A. It all depends. It varies. Everything varies21 because people are all just volunteering.22 There could be a day where you'll see --23 actually, during the 40 days, there have been days24 where there will be ten people there, and then
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1 there will be -- if it's a cold, snowy day, nobody,2 no one.3 I'll be there, but nobody else. If it's4 cold, freezing, snowing, raining, all those good5 Catholics don't show up. Only when the sun comes6 out.7 (Laughter.)8 Q. What do you do during the 40 days?9 A. They pray out loud. They do the rosary. Some
10 will hold signs, and the signs will say "40 Days11 For Life, Pray to End Abortion."12 Q. Where do they usually stand when they pray?13 A. Across the street, across from Pleasant Street14 facing the clinic.15 Q. You said they pray out loud?16 A. Mm-hmm.17 Q. Do they ever use any sort of amplifier or18 microphone?19 A. They have been known to do that, yes.20 Q. Have you observed them do that?21 A. I have.22 Q. When?23 A. On -- once or twice they showed up with this24 thing, these people.
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1 Q. Were they loud?2 A. Not too loud. It would be basically so that3 the people they brought with them could hear the4 priest reading the rosary. It wasn't too loud,5 though.6 Q. Approximately how many people were there on the7 days when they had the microphone?8 A. I don't recall.9 Q. More than five?10 A. Oh, yes, more than five.11 Q. More than ten?12 A. It all depended. Some -- I don't recall.13 It's -- you know, we've had a large amount show up,14 which the police have been called, and we've had --15 where there's only, you know, five, you know.16 It's -- it varies.17 Q. What's the largest group you've ever observed18 outside the Worcester clinic?19 A. When our bishop showed up at the end of the 4020 days.21 Q. How many people were there when the bishop22 showed up?23 A. Maybe 100, but I am guessing on the amount.24 There was no number taken, but to me it looked like
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1 it because there's usually nobody there, so...2 Q. And where did everyone stand in --3 A. We had to spread out. We had as much as we4 could -- we can't block the sidewalk too much. On5 this side, across Pleasant Street, there were also6 some on the left and on the right, on the sidewalk7 of the clinic.8 Q. Did the bishop lead the prayer that day?9 A. Yes, yes, yes, I was surprised.
10 Q. Did the bishop use a microphone?11 A. Yes, he did.12 Q. Were people on both sides of the street praying13 along with the bishop?14 A. Yes, we were.15 Q. What side of the street were you standing on16 that day?17 A. I was standing on the side that I always do,18 across the street.19 Q. Do you keep any records of your activities20 outside of Planned Parenthood?21 A. No.22 Q. Do you report your activities to anyone?23 A. No.24 Q. A little while ago you used the word "save."
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1 Could you please explain to me what you2 mean by a "save"?3 A. A save is basically when a girl is very4 abortion-minded and decided after speaking with us5 that abortion wasn't the right choice for her.6 Q. How many savings have you personally had7 outside the Worcester clinic?8 A. I really don't know.9 Q. How many saves do you have in a typical month?
10 A. Not very lucky. Not too many. I think in the11 two years I've been active, maybe four.12 Q. So you think you've had approximately four13 saves outside the Worcester clinic in the past two14 years?15 A. Exactly.16 Q. And were those all conversations that you had17 with girls on the sidewalk outside the clinic?18 A. Yes, yes.19 Q. Have you ever observed a bus of people come to20 pray outside the clinic, a busload of people?21 A. No.22 Q. Okay.23 Have you ever set up a table across the24 street to hand out information?
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1 A. No.2 MS. VIATOR: I'd like to ask this please3 be marked Exhibit No. 1.4 (Exhibit 1 marked for identification.)5 BY MS. VIATOR:6 Q. Could you please take a look at Exhibit No. 17 and let me know if you recognize this document.8 (Deponent read document.)9 A. Yes, that's what I hand out.
10 Q. It appears to be a trifold --11 A. Yes.12 Q. -- brochure?13 A. Yes, it is.14 Q. Is this a brochure that you hand out on the15 sidewalk across the street from the clinic?16 A. Yes.17 Q. Approximately how often do you use this18 particular brochure?19 A. This is the one that I will use if I have any20 luck to be able to hand it, this is what I hand21 out.22 Q. And I believe you said you -- you on average,23 understanding some weeks are more and others are24 less, you hand out information approximately once a
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1 week; is that right?2 A. Once a week. I could be exaggerating, but3 it's -- on a good week, once a week, I would hand4 out one, but --5 Q. And some weeks you hand out none?6 A. None. And other weeks I may get two people.7 It's very hard to put a number on it because, you8 know, you're standing there hundreds of hours not9 talking to anybody 95 percent of the time.10 So when you do get to hand out11 information, it seems like, yeah, I finally got12 somebody to take something from me, but that's it.13 Q. This brochure references Problem Pregnancy?14 A. Yes.15 Q. That's the entity we were speaking about a16 moment ago, right?17 A. Yes, yes.18 Q. Are you trying to persuade women to go to19 Problem Pregnancy instead of into Planned20 Parenthood?21 A. Yes.22 Q. And on occasion, you have been successful in23 doing that, right?24 A. Yes.
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1 Q. Where do you get these brochures?2 A. Problem Pregnancy.3 Q. Do they give you a stack of them?4 A. They're available for people, yes.5 Q. Okay.6 Are you in contact with the people at7 Problem Pregnancy?8 A. Yes.9 Q. Do they report to you when a woman comes in who10 says she's spoken with you on the sidewalk?11 A. Yes.12 Q. Approximately how many times in the past two13 and a half years since the clinic has been opened14 has that happened?15 A. Maybe four times.16 MS. VIATOR: Can we please mark this17 Exhibit 2.18 (Exhibit 2 marked for identification.)19 BY MS. VIATOR:20 Q. Could you please review the document,21 Exhibit 2, and let me know if you recognize it?22 (Deponent read document.)23 A. Yes, I do.24 Q. What is this document?
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1 A. This was a book that in the beginning we were2 trying to hand out -- people had recommended it to3 me to try to hand out because it had so much4 information in it, so I did hand a couple of these5 out, at least -- it's been over a year since I've6 used that.7 Q. When you say in the beginning, you mean when8 the Worcester clinic --9 A. When the Worcester clinic was over on Pleasant10 Street, because that's when I first got involved.11 Q. You said people recommended it to you.12 Who recommended it to you?13 A. There's -- the specific woman, you know,14 there's always someone that thinks they're your15 boss, and she -- she knew I was trying to, you16 know, counsel women, so she shows up and said I've17 got this great book to hand out, and I looked at it18 and I was, yeah, like, whatever.19 So I did hand out a few, and then I -- I20 reviewed it myself, and I thought it was just way21 too much information for girls that are confused,22 because a lot of these girls are confused, so I23 looked at it, and I was, like, this is just way too24 much information.
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1 Would you read this if you were going into2 a clinic and you weren't sure what you were going3 to do with your life? This is -- no way I would4 read this.5 Q. Yes.6 A. So I didn't really hand out too many of these,7 but other people may have. There may be other8 people still using them, but I myself did not use9 this anymore.10 Q. Do you know the name of the woman who gave it11 to you?12 A. Yes.13 Q. What's her name?14 A. Yes, Linda, Linda McManus.15 Q. Is Linda McManus someone that you often see16 outside of the clinic?17 A. No, but she's a sidewalk counselor.18 Q. And did she give you the copies of the booklet19 to hand out?20 A. She gave me some books and said why don't we21 try these. I read these great things. We're just22 trying different ways.23 Nobody really knows -- there's no right24 way. And she just thought that this would be
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1 if you're facing the clinic on the right-hand side?2 A. Over here?3 Q. Yes.4 A. Very rarely.5 Q. You generally stand on the other side on the6 sidewalk, is that right, on other side --7 A. Either the other side or there.8 Q. Across street.9 MS. VIATOR: Why don't we mark this10 Exhibit No. 5.11 (Exhibit 5 marked for identification.)12 MS. VIATOR: And I apologize, Mike, but I13 do not have a copy of it, although you have a copy14 of it in the materials that I gave you this15 morning.16 MR. DiPRIMO: Oh, all right.17 (Discussion off the record.)18 (Recess.)19 BY MS. VIATOR:20 Q. You're now looking at Exhibit No. 5.21 Do you recognize this scene?22 A. Oh, yes.23 Q. Where the people are standing here, is that24 where --
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1 A. Yes, that's me. And then that's a friend of2 mine that shows up once in a while to pray while3 I'm there.4 And then the other lady is -- she's been5 coming -- I think she comes a few days a week now.6 I think her name is Eileen, but I don't know her7 last name.8 Q. And do you know the gentleman's name?9 A. Yes, that's Paul.10 Q. Do you know Paul's last name?11 A. McLaughlin.12 Q. How often are -- how often is Paul there with13 you?14 A. Not too often.15 Q. What does Paul do when he's there?16 A. He just prays.17 Q. Does he usually stand over with you?18 A. He stands there, right around there19 (Indicating).20 Q. Is that you in the white t-shirt and the21 shorts?22 A. Yes, yes.23 Q. And this is --24 A. Nice picture.
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1 (Laughter.)2 Q. And this is where you generally stand when3 you're outside the clinic?4 A. Yes, yes.5 Q. To the right of where you're standing, you see6 the bus stop sign?7 A. Yes.8 Q. Is that the bus stop you were referencing?9 A. Yes, yes. They get right off there.
10 Q. And then you can't see it in this photograph,11 but to the -- what would be just to the right of12 this photograph is on the sidewalk outside the13 buffer zone, is that the other place where you14 generally stand?15 A. Have been before, yes, where I stand.16 Q. Okay.17 MS. VIATOR: Why don't we mark this18 Exhibit 6.19 (Exhibit 6 marked for identification.)20 BY MS. VIATOR:21 Q. Okay.22 So looking at this picture, we're again23 looking at Pleasant Street, right?24 A. Yes.
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1 Q. And you see in the lower left-hand corner that2 painted arc, that's the buffer zone, right?3 A. Yes.4 Q. And this area in this photo there appears to be5 a grim reaper.6 Is that the area where you sometimes7 stand?8 A. Yes.9 Q. Is the grim reaper ever there when you're
10 outside --11 A. He's been there. I go shoot the breeze with12 him for a couple of minutes sometimes.13 Q. Does the grim reaper have a name?14 A. Ray is all I know. But some people --15 everybody calls him a different name, but I call16 him Ray, so I don't know if he's -- what his name17 is. I'm going to say it's Ray.18 Q. Have you ever seen him outside his costume?19 A. Yes.20 Q. How often is he there when you're there?21 A. He's typically there -- he picks Thursday,22 because he's -- you know for sure Thursdays they do23 apportions, so he stands there Thursdays.24 And then I don't know when else he's
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1 standing there now because he's been trying2 different days, so I've only seen him on Thursdays3 now.4 Q. When Ray is standing on the same side of the5 clinic, do you generally stand across the street?6 A. Generally, I'll go over to say hello, but I7 typically stay away from Ray.8 Q. Why do you stay away from Ray?9 A. Because that's not the message I'm -- I have a10 different message.11 Q. Oh.12 How is your message different?13 A. I am -- I am concerned about the women, the14 women that are going in there and the girls, the15 younger girls.16 My message is more for themselves.17 Q. Can you see Ray from where you stand across the18 street?19 A. Oh, yes, I can see Ray.20 Q. Do people seem to respond to Ray?21 A. All different kinds. Same thing, the finger,22 the two -- you know the way people are today.23 Some people think he's awesome and then24 other people don't. It's the way the world is.
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1 Q. Have you seen cars honk their horns at --2 A. Oh, yes.3 Q. And you've observed people give him gestures?4 A. Oh, all kinds, yes.5 Q. How often do you see people make gestures or6 comments to him in response --7 A. For the two hours he's there, he gets a lot of8 reaction one way or the other. Way more than I get9 when I'm standing there.10 He does -- he gets a lot of reaction. One11 way or the other, he brings attention to himself12 and his message.13 Q. All right. Let me show you another photograph.14 MS. VIATOR: Could we please mark this15 Exhibit 7.16 (Exhibit 7 marked for identification.)17 BY MS. VIATOR:18 Q. Do you recognize the scene in this photograph?19 A. Yes.20 Q. Okay.21 Where is this?22 A. Dewey Street side.23 Q. So coming across the center of the page is24 Dewey Street, right?
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1 A. Yes.2 Q. And straight ahead is the parking lot of3 Planned Parenthood?4 A. For -- yes.5 Q. And patients park in these spots where there's6 a silver car, a red car and a van and so forth?7 A. Yes.8 Q. You see at the bottom of the photograph there's9 a "35" spray painted on the street?
10 A. Yes.11 Q. That's the buffer zone, correct?12 A. Yes.13 Q. Okay.14 And I believe you said you don't often15 come to this side; is that right?16 A. No.17 Q. Do you observe others in this area?18 A. There's one -- one woman that likes to stand19 over the --20 Q. Do you know her name?21 A. Mary.22 Q. What does Mary do?23 A. She gives out information.24 Q. Is Mary -- I believe you used the term
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1 "Sidewalk" counselor?2 A. Yes, she's -- she's a sidewalk counselor, I3 guess.4 Q. Why do you guess?5 A. Well, everybody has their own methods. We'll6 just say that. She's -- she's older. She's in7 her -- at least in her '70s.8 Q. How do Mary's methods differ from your methods?9 A. Louder. She's -- she just waves to everybody10 and anybody going by whether they're going in or11 going by, and she tries to give out information to12 everybody, so...13 Q. How often have you observed her giving out14 information?15 A. If she shows up, it's on a Friday morning.16 But, like, again, you know, it's not a scheduled17 thing, so I haven't -- I actually haven't seen Mary18 all summer, so...19 Q. Mm-hmm.20 Now, this -- this spot in the -- in the21 bottom of the photograph, is that where Mary22 generally stands?23 A. No. She usually stands to the right where you24 can't see here. She's standing near that silver
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1 other and they pray. No one yells.2 Q. So how many people total are there around the3 times that you're there?4 A. Ninety percent of time I'm alone, but you can5 go on a Thursday and know you're not going to be6 alone in the morning because the grim reaper is7 always there on Thursdays unless of course he went8 away or something.9 And then there's a couple of other guys
10 that show up on Thursdays. And then sometimes on11 Saturdays I will get Jay, the guy with the Blessed12 Mother shows up on Saturday, and some people come13 on Saturday sometimes to pray, like a prayer group14 shows up.15 Usually I'm gone by the time they show up,16 though, because I go early on Saturday if I go.17 But typically, in a given week there might18 be four, five steady people that might show up two19 days a week, a two-day-a-week thing, and then the20 other days, no one's there.21 Q. And during 40 Days For Life, there are more22 people there?23 A. Yes.24 During the 40 Days For Life, this last
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1 campaign -- the other ones were a flop -- but this2 last one for some reason people decided to come out3 to and join this 40 Days For Life campaign.4 Q. Lee Crowley is a name you mentioned earlier as5 someone who organizes the 40 Days For Life, right?6 A. Yes.7 Q. Do you observe Lee outside the clinic?8 A. Yes, I've been there when she's there.9 Q. What does she typically do?
10 A. Pray.11 Q. Where does she usually stand?12 A. Where I stand, across the street.13 Q. Who is Rod Murphy?14 A. He's the -- he's the guy that runs Problem15 Pregnancy.16 Q. Is he employed by Problem Pregnancy?17 A. Oh, no, he's -- he invented it, I guess.18 Q. Is a volunteer?19 A. Everybody's volunteer. It works on total20 donations. There's nobody employed. We all work21 for free, and everything that they do is all22 through good people. It's all funded by good23 people.24 Q. Is Mr. Murphy a doctor?
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1 A. I don't know. No, I would say no.2 Q. In the materials that you've -- the information3 that you've produced in this case through your4 lawyer, you list a number of individuals, some of5 them we've already talked about, but that's what I6 want to go through and make sure we have that7 covered.8 A. Mm-hmm.9 Q. Linda McManus we've talked about.
10 Cathy you've identified as someone who11 works at Problem Pregnancy, right?12 A. Yes.13 Q. How often do you talk to Cathy?14 A. When I go in, you know, if she's there. I15 talked to her today. She was there today. She's16 there pretty frequent.17 She's an ultrasound tech and she's a18 nurse, so she's there a lot.19 Q. Does Cathy ever engage in activities outside20 the clinic or does she stay inside Problem21 Pregnancy?22 A. I've seen her out praying during the 40 Days,23 standing where I stand normally, and I've seen her24 praying.
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1 Q. Tommy Quinto, is it?2 A. I think it's Quinto.3 Q. Is it Quinto?4 A. I think it's Quinto. He's a handicapped man.5 He shows up in a wheelchair. He's -- he's very6 pro-life, and he sits there with me, and he's the7 only one that will show up when it's below zero and8 be my prayer person when I'm over there.9 Q. Does he generally stand on the same side of --
10 A. He's in a wheelchair, and he will be on the11 side where the grim reaper is. That's where he is12 because that's where the -- that's where they put13 him, basically.14 Q. So he is on the sidewalk on Pleasant Street on15 the same side as the clinic?16 A. As the clinic.17 Q. If you're facing the clinic to the left?18 A. Yes.19 Q. Does he have any signs with him?20 A. Sometimes he'll hang a sign over his head that21 says "Unpleasant on Pleasant Street."22 Tommy doesn't really talk very well. He's23 very handicapped, so he -- sometimes, but even --24 you know, that depends on -- he doesn't put the
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1 from your deposition?2 A. 7.3 Q. And it's a photograph of Planned Parenthood's4 driveway on Dewey Street looking from across the5 street into the parking lot, correct?6 A. Yes.7 Q. Okay.8 Now, where would you stand, if you could,9 in the absence any buffer zones?
10 A. Right there on the right side when you're11 looking at the parking lot.12 Q. It looks to me you're pointing at this13 photograph and you're pointing to the public14 sidewalk immediately adjacent to the driveway; is15 that correct?16 A. Yes.17 Q. And why would you stand there?18 A. Well, if I want to be more successful in19 getting out the paperwork, I would probably draw20 attention, you know, when they drive in. I know21 that if you're waving the paperwork, they may stop22 and take some from you, but...23 Q. In your opinion are people most likely to24 accept literature from you if you're standing a
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1 foot away from them as opposed to 35 feet away?2 A. Definitely.3 Q. How many people have gone into the Planned4 Parenthood parking lot and gone back to you to5 accept some of your literature?6 A. I can only remember one, one person coming out7 from the parking lot.8 Q. And this is in the almost year and a half since9 Planned Parenthood has been located on Pleasant10 Street?11 A. Yes.12 Q. How many times have anybody who have gone into13 the Planned Parenthood parking lot come out to you14 to speak with you?15 A. I can only remember one, one person parking16 there, and I was standing over here and they wanted17 to see what -- what I was yelling.18 They were wondering what I had to offer,19 and they came out, and I spoke to them and they20 went in. They went to the clinic.21 Q. Earlier Attorney Viator asked you about a22 fellow who apparently wears a grim reaper costume.23 How often are you there when he's there?24 Let me rephrase that.
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1 How often is he there when you're there?2 A. He would be there on Thursdays when I go on3 Thursdays. I try to go every Thursday.4 Q. And you're there for approximately how many5 hours?6 A. Thursday, I'll try to do 9:30 -- well, in the7 summer it's been less, but on average it's 9:30 to8 like 11:30.9 Q. Let's back up a little bit.
10 How many times a week do you go on11 Thursdays to Planned Parenthood in Worcester?12 A. Almost every Thursday I try to go.13 Q. And I believe you testified when you go there,14 you try to go there for at least two hours, right?15 A. Yes.16 Q. Okay.17 What other days of the week do you go18 there?19 A. I have been known to be there -- people have20 seen me on Tuesdays, Friday mornings and Saturday21 morning.22 Q. Okay.23 Do you go every Tuesday morning?24 A. No.
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1 Q. Not every.2 How many Tuesdays out of the year do you3 think you go?4 A. I haven't been there in a while on Tuesdays, so5 it's -- I've been there at least during the 40 Days6 For Life. I've been there on Tuesdays, and then I7 have -- it's been a while since I've been able to8 get there. My schedule hasn't allowed it right9 now.
10 Q. Okay.11 Do you go on Fridays every week?12 A. No, but I -- if I shoot for another day, it's13 Friday, and then Saturday, every other Saturday.14 Q. Okay.15 So when you said you go a couple of hours16 per week, that's an average over the course of a17 year?18 A. Yes, a couple hours a week. And of course19 during the 40 Days, I'm there no matter what,20 whether they're closed or open. I'll do an hour.21 Q. Okay.22 During the previous portion of your23 deposition, you frequently referred to attempting24 to communicate with girls.
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WITNESS: NANCY CLARK
2 CASE: McCullen, et al. V. Coakley, et al.
3 SIGNATURE PAGE/ERRATA SHEET
4 PAGE LINE CHANGE OR CORRECTION AND REASON 744 t /77 0 7- lo 010/ 40 cxe7
5 of
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14 I have read the transcript of my deposition taken on July 13, 2011. Except for any
15 corrections or changes noted above, I hereby subscribe to the transcript as an accurate record
16 of the statements made by me.
17 Signed under tlypains anec:1,9pe alties of perjury. i Deponent: 6.1 / /201-1
18 Nan .c7taark On this ,a day of A.T.,,st , 2011 , before me,
19 the undersigned notary public, personally appeared Nancy-Clark, who presented satisfactory evidence of
20 identification, to wit, , and signed this document in my presence.
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22 Notary Public in and for My commission expires
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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS NO.: 1:08-cv-10066-JLT
* * * * * * * * * * * * * * * * *Eleanor McCullen, et als * *v. * *Martha Coakley, as Attorney *General for the Commonwealth of *Massachusetts, et als * ** * * * * * * * * * * * * * * * *
Deposition of Cyril Shea
Wednesday, June 29, 2011
Office of the Attorney General
1350 Main Street
Springfield, Massachusetts 01103
----------- Kelly M. Bruce ---------- Court Reporter REPORTERS, INC. CAPTURING THE OFFICIAL RECORD 617.766.7783/FAX 617.639.0396 www.reportersinc.com
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1 date.2 BY MS. VIATOR:3 Q. I understand. And my questions are4 just referring to the last few years since that5 time period. Okay?6 A. Uh-huh.7 Q. If you have any questions or you8 don't understand any of my questions as we're9 going along, please just let me know and I'll do10 my best to clarify. Okay?11 A. Okay. I better keep that date in12 front of me. Would you please tell me the date13 again?14 Q. The time period is since November of15 2007.16 MR. DEPRIMO: It might be easier17 if you limit your questions to the time18 since the buffer lines were painted on19 the street since he doesn't know exactly20 when that was.21 MS. VIATOR: Okay.22 THE WITNESS: May I say one other23 thing?24 MR. DEPRIMO: Of course.
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1 THE WITNESS: I'm not sure that2 was the law, but it was the time the3 buffer zone lines were drawn. I thought4 the law had been in effect for some5 period of time before the lines were6 drawn. That's my recollection.7 BY MS. VIATOR:8 Q. This is the particular time period9 that's at issues in this case, and so this is10 the time period that I'm asking you about, when11 the 35 foot lines were drawn around the12 entrances to the clinic.13 A. What I'm saying is I -- really, I'm14 not sure that that was the time the lines were15 drawn. You may have knowledge that I don't16 have, but I don't remember that and I don't17 think it was that far back.18 Q. Okay. That's fine. My time period19 for my questions is since November of 2007. Do20 you understand?21 A. I understand the date that you're22 giving me for your questions.23 Q. Thank you. How often do you go to24 the Planned Parenthood in Springfield?
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1 A. Well, at least once a week or2 sometimes often.3 Q. What day do you go?4 A. I almost always go on Friday, but5 there might be other days that I would go such6 as Wednesday or Saturday as a rule.7 Q. Why do you go on those particular8 days?9 A. Friday has become a habit, it's when10 I started out, and it's been habitual with me11 since. On Wednesdays and Saturdays it's because12 I've been asked on a couple of occasions to come13 on those particular days.14 Q. What times do you go?15 A. Well, it's variable but on the16 Fridays I would usually go at 10 and stay to 1117 or 11:30. But it does vary. And on Wednesday I18 think it might be 10 to 11 too. Saturdays, it19 might be 9 to 10. But it's variable and I don't20 have a truly set pattern.21 Q. You said sometimes you were asked to22 go on Wednesday or Saturdays. Who asked you?23 A. It's been suggested. Maybe "asked"24 was too strong a word, but just suggested by Don
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1 Golden who is there almost every day. And at2 times I've seen him in the morning or3 occasionally he's called me and asked or4 suggested that I come down at a particular time.5 Q. Is there any reason that you go at6 the particular time of day that you go?7 A. Well, my daily schedule, I am8 retired, but have a daily schedule. And I start9 out by -- with a commitment at 8:00 to attend10 mass and then I hope to get home and have11 breakfast. By that time before I get down there12 would be perhaps quarter of 10 or maybe 10:15 or13 10:30.14 Q. And what do you do when you go to the15 clinic?16 A. I'm down there to pray and to17 indicate to the public that abortions are taking18 place on that campus and to make that knowledge19 known. And hopefully if I had the opportunity20 to hand out literature to clients of the21 abortion clinic, to guide them.22 Q. Where do you usually stand when you23 do this?24 A. I can't say that there's a usual
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1 pattern but there's some places that are2 frequent. One of the frequent places is to the3 right of the drawn lines at the Wason Avenue4 entrance, more often on the right than on the5 left as you face the clinic. But I also would6 stand out in the corner of Wason and Main. I7 would stand to the right or the left of the8 middle entrance off Main Street. I would9 sometimes stand at the third entrance off Main10 Street going north on the -- usually that would11 be on the left facing the clinic. But much of12 the time I'm mostly walking.13 Q. And where is it that you walk?14 A. On the sidewalks.15 Q. Along Wason Street do you walk?16 A. Wason Avenue and Main Street.17 Q. In your observation, how do people18 arrive at the clinic most often?19 A. In my observation of others or20 myself?21 Q. In your observation of others, how do22 they arrive at the clinic?23 A. The others, I think they almost24 always arrive by automobile, with one exception,
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1 there was one person that came on a motorcycle.2 Q. Which entrance do patients of the3 clinic use most often based on your observation?4 A. I think it's most often on the Wason5 Avenue or the middle entrance off Main Street,6 but the actual numbers I really couldn't give7 you.8 Q. You said that you pray outside of the9 clinic?10 A. Yes.11 Q. Do you pray out loud?12 A. Yes.13 Q. What prayers do you pray?14 A. Generally, the Rosary, but there are15 others. Hail Mary, Our Father.16 Q. Do you use Rosary Beads --17 A. Yes.18 Q. -- when you pray?19 A. Yes.20 Q. For the record, we need to make sure21 that we're not speaking over each other, so I'll22 try to finish my question and then you answer23 and then I'll ask my next question.24 Do you usually pray alone or with
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1 others?2 A. It's about 50/50.3 Q. Do you ever use a microphone or any4 sort of amplifier when you pray?5 A. No.6 Q. Is there any of the particular places7 that you listed where you like to stand, is8 there any particular place that you stand when9 you pray?10 A. No.11 Q. I believe you stated that you --12 you're there to indicate to the public that13 abortions are taking place at this facility.14 How do you indicate that to the public?15 A. I carry a sign.16 Q. What does your sign say?17 A. "They're killing babies here."18 Q. How large is the print on that sign?19 A. I'd say it's probably, in a given20 letter, it may be eight-by-five inches,21 something like that.22 Q. And how large is the sign as a whole?23 A. It would be about three and a half24 feet by maybe two, two and a half feet.
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1 Q. Do you hold the sign or wear it?2 A. I wear it.3 Q. Do you have a string around your4 neck, is that how it's --5 A. Well, it's not a string.6 Q. Do you have some mechanism to wear7 it?8 A. I have a rope there, yes.9 Q. Do people seem to notice or read your10 sign?11 A. Some do; some don't.12 Q. How do people notice or read your13 sign?14 A. By eyesight.15 Q. What is their reaction?16 A. It's very variable. Some it's quite17 favorable; some is negative; some is totally18 neutral.19 Q. What type of favorable reaction have20 you received to your sign?21 A. Thumbs up, that type of thing, maybe22 a wave, a smile, an acknowledgment.23 Q. And who have you received that type24 of acknowledgment from?
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1 A. I don't have any names for you.2 Q. Have you received a wave or thumbs up3 or a smile from any drivers of cars passing by?4 A. Drivers have given responses of that5 type.6 Q. And have you ever received a response7 of that type from a car as it was turning into8 the clinic entrance?9 A. I think so.10 Q. Have you received that type of11 response to your sign from pedestrians walking12 by?13 A. Have I received a response, did you14 say?15 Q. To your sign --16 A. Yes.17 Q. -- from pedestrians walking by?18 A. Yes.19 Q. So you've received waves or smiles or20 thumbs up from pedestrians walking by?21 A. Yes.22 Q. Is there any place in particular23 where you stand with your sign?24 A. No.
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1 Q. So you could be standing at any of2 the places that you listed before with the sign;3 is that right?4 A. Even beyond that, I might stand on5 one side or the other of any of the entrances6 actually.7 Q. I believe you also mentioned that you8 received negative response to your sign. What9 type of negative response have you received?10 A. Obscene comments, angry comments,11 obscene gestures, and sometimes just a shaking12 of the head and a grimace.13 Q. And from who have you received those14 types of reactions?15 A. I don't know.16 Q. Have you received those types of17 negative reactions from drivers passing by?18 A. Yes.19 Q. Have you received those types of20 negative reactions from pedestrians walking by?21 A. I don't know, but I think -- well, I22 don't know.23 Q. Have you received those types of24 negative reactions from drivers pulling in to
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1 the clinic entrance?2 MR. DEPRIMO: I'm going to object3 just on the ground that it's really not4 the clinic entrance, it's a medical5 complex with three buildings. So if you6 want to ask him if he's seen people7 driving into the driveway parking lot8 that houses many, many different types9 of medical facilities, that would be10 fine.11 MS. VIATOR: Understood.12 BY MS. VIATOR:13 Q. Have you receive these types of14 negative reactions from drivers or passengers15 pulling into the driveway of the medical16 facility?17 A. I've -- I can recall one. Beyond18 that, I don't think I can recall that off the19 top of my head.20 Q. Have you received gestures or21 comments on your sign from individuals after22 they parked in the parking lot of the facility?23 A. I don't think I remember that.24 Q. You also stated that you sometimes
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1 hand out literature; is that correct?2 A. No. I don't have that opportunity as3 a rule. Trying to think of this date that you4 have in front of me or that I've written in5 front of me. Based on your question, is6 pertinent to that question. I think -- I don't7 think I've had the opportunity since that8 particular incident that you described.9 Q. So when you're at the clinic, you10 primarily hold your sign and pray; is that11 right?12 A. Hold the sign, pray, and I do move13 about.14 Q. Do you bring literature with you?15 A. Oh, I do.16 Q. To the best of your recollection,17 you've not handed out literature to anyone in18 the past four years or so; is that correct?19 A. Well, I'm trying to think. I don't20 recall doing that in this timeframe.21 Q. So you pray, you hold signs, and you22 walk about. Is there anything else that you do23 while you're outside of the facility that houses24 Planned Parenthood?
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1 A. Sometimes I'm asked to assist in2 counseling.3 Q. What do you mean by "assist in4 counseling"?5 A. Sometimes the folks who are6 counseling want a medical background person to7 give an opinion.8 Q. Who are the folks that counsel?9 A. Don Golden, Joe Ott, Mary Driscoll,10 Ann Golden, Linda Bauer. And I think many11 people who go there may occasionally counsel,12 myself included.13 Q. What do you mean by "counsel"?14 A. Ask the person going in if they are15 going in for abortion services and then give16 some background to them so that they might have17 knowledge of what these services might entail18 and what the result might be.19 Q. So who are the people being20 counseled?21 A. These would be people going in for22 abortions.23 Q. Where does this counseling take24 place?
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1 A. On the sidewalk.2 Q. Any place in particular on the3 sidewalk?4 A. Well, it would have to be in a5 non-prohibitive zone that is a free sidewalk.6 Q. Have you observed this type of7 counseling take place on Wason Avenue?8 A. In the timeframe you're talking9 about?10 Q. Yes.11 A. No.12 Q. Have you observed this type of13 counseling take place on Main Street?14 A. No.15 Q. So you've not observed anyone engage16 in this type of counseling since November of17 2007; is that correct?18 A. Well, the date gives me a timeframe19 to answer you as you've asked and the answer is20 no.21 Q. Do people ever come over to talk to22 you when they see your sign?23 A. Sometimes.24 Q. Who comes over to talk to you?
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1 A. They -- in my recollection are2 basically passersby. In one instance it was a3 person who couldn't read English.4 Q. Do passersby see your sign from5 across the street?6 A. I don't think I could answer for7 them.8 Q. Has a passerby ever crossed the9 street to come talk to you?10 A. I don't think so, but I don't know.11 Q. Has someone ever come out of the12 parking lot of the facility that houses Planned13 Parenthood to talk to you?14 A. Yes.15 Q. How often has that happened?16 A. That's happened to me once. I think17 that's all I can remember.18 Q. When was that?19 A. Well, I'm not sure it falls within20 this timeframe. I'm a little hesitant on that.21 But it might have fallen within this timeframe.22 Might have. It might have been before that.23 Q. And what happened on that occasion24 when the person came out of the Planned
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1 Parenthood facility to talk to you?2 A. The person was angry with me and3 wanted to express anger.4 MS. VIATOR: Did you have an5 objection?6 MR. DePRIMO: I just wanted to7 clarify that. Your question was: When8 did the person come out of the Planned9 Parenthood facility? Does the witness10 know that the person came out of the11 Planned Parenthood facility or were they12 just in the driveway or --13 BY MS. VIATOR:14 Q. The -- came out of the facility that15 houses Planned Parenthood?16 A. Well, then I think I'd have to say I17 don't know if this person came out of the18 parking lot.19 Q. And what was your interaction with20 this person who came out of the parking lot?21 A. I had a discussion with him on his22 points of anger.23 Q. You mentioned some other individuals24 who you observe when you were there. How many
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1 others are usually with you when you are outside2 of the facility?3 A. Usually would be maybe as many as4 five or six down to zero. There are, of course,5 exceptions.6 Q. Are there more on any particular day?7 A. Sometimes.8 Q. What days are those?9 A. During 40 Days for Life, a period of10 time that we try to make a particular effort, it11 would be the 40 days approximately prior to12 Easter.13 Q. During Lent?14 A. Prior to Palm Sunday, I guess I15 should say. And then there's a corresponding16 timeframe in the fall. But there are other17 occasions when more people come, there are other18 occasions.19 Q. Who organizes 40 Days for Life?20 A. I think it's organized by a man named21 Dave Bereit.22 Q. And what do you do when you23 participate in the 40 Days for Life?24 A. We attend the medical facility area,
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1 walk about, demonstrate the signs to the public,2 pray, make ourselves available for information.3 If an opportunity arose, which, of course, is4 difficult under these circumstances, then to5 give literature.6 Q. Do you ever display signs during 407 Days for Life?8 A. Yes.9 Q. Is it the same sign that you display10 other times?11 A. Yes.12 Q. Do you have any other signs that you13 personally ever use?14 A. I don't have any others, no.15 Q. Did you make your sign?16 A. No. I inherited it from another17 pro-lifer who's now passed on.18 Q. Do you see others holding signs when19 you're at the -- outside the facility?20 A. I do see them.21 Q. What signs do you see?22 A. I see signs that indicate that23 abortion is wrong, that mothers regret their24 abortions, that fathers regret their lost
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1 fatherhood. There are religious signs2 indicating the religious positions of churches3 against abortion. And I think that pretty well4 covers it.5 Q. Where do you see these signs?6 A. I see them at the abortion facility,7 that is the entire medical complex on the8 sidewalks.9 Q. If you are standing across Wason10 Avenue, have you ever seen a sign that someone11 was holding on the opposite side of Wason12 Avenue?13 MR. DePRIMO: I object. I think14 that mischaracterizes his testimony. I15 don't think he ever said he stood across16 the other sides of the road. Is that17 what you're asking him: Has he ever18 stood across the side of the road from19 the sidewalk?20 MS. VIATOR: Okay. I believe21 that was one of the -- one of the places22 he listed where he stands.23 BY MS. VIATOR:24 Q. But if you were standing to the right
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1 of the buffer zone on Wason Avenue, have you2 ever seen someone standing across Wason Avenue3 with the sign?4 A. Have I seen anybody over there?5 Q. Yes.6 A. Yes.7 Q. And can you read the sign from where8 you are?9 A. No.10 Q. Have you ever seen someone holding a11 sign on the other side of the buffer zone12 from --13 A. Yes.14 Q. -- where you've stood?15 A. Yes.16 Q. And you can see that that person is17 holding a pro-life sign?18 A. Yes.19 Q. How do you arrive at the facility?20 A. I have an automobile that I drive21 there.22 Q. Where do you park?23 A. I park it near the railroad. If24 you're familiar with the map there, I park it
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1 near the railroad.2 Q. Do you park on Wason?3 A. No. That's prohibited by city4 ordinance.5 Q. Do you display any signs on your car6 when you park?7 A. Well, I have bumper stickers that I8 display at all times. I don't put them on9 specifically for my type of demonstration or10 picketing.11 Q. So it's just your bumper stickers12 that are typically there; you don't have any13 billboard-type signs that you lean against your14 car; is that right?15 A. No.16 Q. Do you keep any records of your17 activities outside the facility?18 A. No.19 Q. Do you report your activities to20 anyone?21 A. No.22 Q. I'd like to show you some pictures.23 MS. VIATOR: If you could mark24 that as Exhibit No. 1, please.
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1 (Exhibit 1, photograph, marked)2 BY MS. VIATOR:3 Q. Can you look at that picture and let4 me know if you recognize the signs in this5 picture.6 A. I've seen two of them before.7 Q. Which two?8 A. The first and third.9 Q. So you've seen the sign that says,10 don't abort, we'll help, with a phone number?11 A. Well, I've seen a similar sign. I12 can't identify that for certain. I guess it13 would depend, I suppose, on the phone number. I14 can't identify it with certainty, by I've seen15 very similar signs, yes.16 Q. Do you know who you've seen hold17 these signs?18 A. No. I don't remember specifically19 who held them.20 Q. Do you see the phone number on that21 first sign, (800)395-help. Do you know whose22 phone number that is?23 A. I don't remember that number. I do24 have -- with my literature, I have a list of
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1 numbers, but I don't remember that number. I2 don't remember any of them off the top of my3 head.4 Q. And whose numbers are in the5 literature that you have?6 A. They'd be crisis pregnancy-type7 centers.8 Q. I'd like to show you another picture.9 MS. VIATOR: Mark that as Exhibit10 2, please.11 (Exhibit 2, photograph, marked)12 BY MS. VIATOR:13 Q. Could you please take a look at14 Exhibit 2 and let me know if you recognize the15 signs in this picture.16 A. I'm not sure.17 Q. You don't recall whether you've seen18 these signs?19 A. Not specifically. I have seen20 similar signs of the second and similar signs of21 the first, but I can't say with certainty.22 Q. Okay. And do you recognize that23 phone number (413) 262-8517?24 A. No.
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1 MS. VIATOR: Can we mark this as2 Exhibit 3, please.3 (Exhibit 3, photograph, marked)4 BY MS. VIATOR:5 Q. Do you recognize the sign in this6 picture?7 A. I do.8 Q. Is this a picture of you?9 A. Yes.10 Q. And is this the sign that you11 generally wear when you --12 A. It is.13 Q. -- visit?14 Do you know who took this picture?15 A. I don't remember.16 Q. Does this picture accurately17 represent the sign that you hold outside of the18 clinic?19 A. I think it is the sign.20 MS. VIATOR: And we'll mark this21 as Exhibit 4, please.22 (Exhibit 4, photograph, marked)23 BY MS. VIATOR:24 Q. Is this, again, you in this picture?
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1 would you say arrive at the Planned Parenthood2 facility or the building where Planned3 Parenthood is located on foot?4 A. Oh, that's a small percentage. I'd5 say -- I'd say 10 percentage. It might -- I6 don't think it would exceed that, maybe 10 or7 12.8 Q. So is it your testimony that9 approximately 90 percent of the folks who enter10 into that building where Planned Parenthood is11 located do so by a vehicle?12 A. I would think it would be about 9013 percent, 85 to 90 percent.14 Q. Where do these folks enter into the15 complex?16 A. Well, I think they would enter mostly17 on the -- well, not mostly, but many of them on18 the Wason Avenue entrance and the other on the19 Main Street entrance, that middle entrance. And20 when I say Wason Avenue entrance, there really21 are two Wason Avenue entrances and it would be22 the first one, the one closest to the railroad23 tracks. And in the case of Main Street, it24 would be the middle one.
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1 Q. Is there any driveway entrance into2 the medical complex that does not have buffer3 lines painted around it?4 A. They all have the buffer line.5 Q. How many people have you observed6 park their vehicle and then come back to either7 receive literature or talk to one of the8 pro-life counselors --9 MS. VIATOR: Can we just clarify?10 BY MR. DePRIMO:11 Q. -- since the buffer line, since the12 buffer line was put down?13 A. Can I answer?14 Q. Yes.15 A. I lost my train of thought.16 Q. Let me repeat the question.17 Since the buffer lines were placed18 down on the streets and sidewalks, how many19 people who went into the parking lot and parked20 their vehicle actually came back to receive21 literature or counseling from the pro-lifers who22 were on the sidewalk or the street?23 A. It would be very few. Did you ask24 for a percentage?
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1 Q. Can you give me a percentage?2 A. Well, I would think it would be five3 percent at the most, very most.4 Q. So is it your testimony then that 955 percent of the people who pull into the driveway6 park their car and then go into the building7 housing Planned Parenthood never come back to8 either receive literature or talk to pro-lifers?9 A. 95 percent or more.10 Q. You testified earlier in your11 deposition that you have a bumper sticker on12 your car?13 A. Yes.14 Q. And that in some way speaks to15 abortion?16 A. Yes. I have one, at least one that17 speaks to abortion, and maybe a second one. But18 one that quite clearly speaks to abortion.19 Q. And you indicated earlier also,20 correct me if I'm wrong, that you park your21 vehicle down near the railroad tracks?22 A. I do.23 Q. Approximately how far is your vehicle24 from the closest driveway going into the medical
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1 complex where you park?2 A. Oh, maybe -- maybe about 20 yards or3 so.4 Q. From where you're standing when5 you're out there, if you were to look back at6 your vehicle, would you be able to read the7 bumper sticker from there?8 A. No.9 Q. Since the buffer lines were painted10 on the streets and sidewalk, how many11 opportunities would you say you've had to pass12 out literature when you were at Planned13 Parenthood in Springfield?14 A. Once or twice at the most. It might15 even be zero. Hard to remember.16 Q. Prior to the time that those lines17 were painted on the streets and sidewalk at18 Planned Parenthood in Springfield, how many19 opportunities did you have to pass out20 literature?21 A. Well, it would be more. Hard to22 remember those things, but I was more into the23 prayer and others into the handing of the24 literature, so I probably would have done it
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1 maybe five or six times.2 Q. If you had your choice, where would3 you prefer to stand when you're at Planned4 Parenthood in Springfield?5 A. I think the preferable place would be6 on the Wason Avenue entrance that we talked7 about and either to the right or the left. It8 perhaps wouldn't matter too much whether it was9 to the right or left.10 Q. Right or the left of what?11 A. Right or the left of the driveway,12 but right close to the driveway.13 Q. When you say "right close to the14 driveway," approximately how close in feet?15 A. Oh, a foot.16 Q. And why don't you stand there now?17 A. Well, that's in the prohibitive zone.18 Q. Why don't you go into the prohibitive19 zone?20 A. Well, it's against this law, this21 buffer law.22 Q. What would you fear if you violated23 that?24 A. Well, I fear that I would be in
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1 violation and charged with a crime.2 Q. What is your understanding if you3 were convicted of that crime, what would happen4 to you?5 A. Well, that I could have jail time or6 I could pay a fine.7 Q. I don't think I asked this question.8 Where would you prefer to stand if you were9 counseling people who are going into the Planned10 Parenthood in Springfield?11 A. Well, I think in that instance, I'd12 prefer to stand closer to the door to the13 building so that they would be out of their14 vehicle and able to converse.15 Q. And when you say closer to the door16 of the building, approximately where would you17 like to stand?18 A. Just a few feet from the entrance,19 either on the right or left.20 Q. Okay. Is it your understanding21 that's private property?22 A. Yes.23 Q. Have you been given permission to go24 on the private property?
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1 A. No.2 Q. So you have to stand on public3 property; is that correct?4 A. I believe that's so, yes.5 Q. Okay. So where would you prefer to6 stand given the fact that you're limited to7 public property, where is the best place for you8 to stand to be able to counsel people going in9 and out of Planned Parenthood in Springfield?10 A. Well, I think I'd have go back to11 what I was saying, that I'd have to stand very12 close to the driveway, either on the right or13 left of the driveway, and only a foot or two14 away from the actual driveway.15 Q. And why don't you stand there now?16 A. Well, again, if I was that close, I17 would be within the forbidden zone.18 Q. So basically the same reasons that19 you don't stand there?20 A. Yes. I would be subject to21 violations of the law.22 Q. Do you fear arrest?23 A. Well, yes, I think that could happen.24 I'm not going to say I fear it because I'd be
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1 willing to tolerate it. But, you know, I2 wouldn't like it.3 Q. But do you -- you believe arrest4 would be a possibility?5 A. Yes.6 Q. Do you believe that you could7 possibly be incarcerated for that?8 A. Yes.9 Q. For standing inside that zone next to10 the property?11 A. Yes.12 Q. Even if you weren't obstructing any13 vehicles?14 A. I think I could be.15 Q. Have there ever been any instances16 where people have wanted to talk with you who17 are inside the zone but you couldn't do that18 because you were standing on the outside of the19 zone?20 A. Well, I'm not sure, because you don't21 know what people are thinking. But if they22 turned into the driveway to go to the parking23 lot, I think they'd hesitate to stop to make24 such a decision because they'd be obstructing
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THEY'RE KILLING BABIES HERE
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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION
C.A. No. 1:08-CV-10066-JLT Vol. I, Pg. 1-`133
ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA,) GREGORY A. SMITH, ERIC CADIN, )CYRIL SHEA, NANCY CLARK and MARK BASHOUR, )
Plaintiffs, ) )
-vs- ) )
MARTHA COAKLEY, Attorney General for the )COMMONWEALTH OF MASSACHUSETTS, )DANIEL F. CONLEY, District Attorney for )Suffolk County, MARK G. MASTROIANNI, )District Attorney for Hampden County, and )JOSEPH D. EARLY, District Attorney for )Worcester County, )
Defendants )
The DEPOSITION OF MICHAEL BANIUKIEWICZ, taken
on behalf of the Plaintiffs, pursuant to the
Massachusetts Rules of Civil Procedure before
Mary K. Corcoran, a Professional Shorthand Reporter
and Notary Public in and for the Commonwealth of
Massachusetts, at the OFFICE OF THE ATTORNEY
GENERAL, 100 Cambridge Street, Boston, MA, on
Wednesday, July 27, 2011, commencing at 9:45 a.m.
ELLEN M. FRITCH & ASSOCIATES373 Silver Street
South Boston, MA 02127(617) 269-5448
2A P P E A R A N C E S1
2
For the Plaintiffs:3
MICHAEL J. DePRIMO, Esq.4778 Choate AvenueHamden, CT 065185
6For the Defendants:
7Kenneth W . Salinger, Esq.Gabrielle Viator, Esq.8THE COMMONW EALTH OF MASSACHUSETTSOffice of the Attorney General9Civil Rights DivisionOne Ashburton Place, 18th Floor10Boston, MA 02108
11
Also Present:12
Ms. Kasha Ambroise 131415161718192021222324
DEPOSITION OF MICHAEL BANIUKIEWICZ
3 I N D E X1
DEPONENT Page2
MICHAEL BANIUKIEWICZ3 D irect Examination by Mr. DePrimo 44Cross-Exam ination by Ms. Viator 78Redirect Exam ination by Mr. DePrim o 1085Recross-Exam ination by Ms. Viator 129Redirect Exam ination by Mr. DePrim o 130 6
7
E X H I B I T S8
No. Description Page9
1 Photograph 1310
2 Photograph 1711
3 Subpoena to Testify 1912
4 Map 9013
1415161718192021222324
DEPOSITION OF MICHAEL BANIUKIEWICZ
4
P R O C E E D I N G S1(W itness sworn.) 2
M ICHAEL BANIUKIEWICZ,3having been satisfactorily identified by the 4production of his driver's l icense, and duly sworn 5by the Notary Public, was examined and testif ied on 6his oath as follows:7
DIRECT EXAMINATION8(By Mr. DePrim o)9
Mr. Baniukiew icz, good m orning, m y nam e is 10 Q.Michael DePrim o. We met a few m om ents ago, 00:00:02 11and you're here by subpoena; is that correct? 00:00:06 12Yes. 00:00:08 13 A.And you're here on the case of McCullen v. 00:00:08 14 Q.Coakley, which is a challenge to the 00:00:14 15Massachusetts Buffer Zone Law?00:00:14 16Yes.00:00:14 17 A.Are you familiar with that law? 00:00:18 18 Q.Yes, I am . 00:00:20 19 A.I'm going to be asking you questions today, 00:00:21 20 Q.and if m y questions are som ehow unclear, if 00:00:24 21you don't understand them , you can ask me to 00:00:28 22clarify or rephrase, and I need you to 00:00:29 23actually articulate your answer, because if 00:00:33 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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5you nod, the Court Reporter can't write it 00:00:34 1down? 00:00:37 2You mean I can't do this (gesturing), and she 00:00:37 3 A.won't know what I'm saying? 00:00:39 4No, the record won't reflect that you're 00:00:39 5 Q.pointing your finger back and forth, so you 00:00:43 6need to actually speak your answer. 00:00:43 7Yes, okay.00:00:45 8 A.Can we agree that all of your answers are 00:00:45 9 Q.going to be complete and accurate today? 00:00:47 10Yes. 00:00:49 11 A.Are you feeling well? 00:00:49 12 Q.Couldn't feel better if I wanted to. 00:00:51 13 A.Are you on any type of medication that might 00:00:53 14 Q.affect your ability to recall events? 00:00:57 15No. 00:00:59 16 A.Mr. Baniukiewicz, are you married? 00:00:59 17 Q.Yes, I am. 00:01:04 18 A.Do you have any children? 00:01:04 19 Q.Yes, I do. 00:01:05 20 A.How many? 00:01:05 21 Q.I have three children. 00:01:06 22 A.And how old are they? 00:01:08 23 Q.32, just changed Sunday, that's why I have to 00:01:10 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
6think a minute, 25, and 22. 00:01:16 1Do they live at home? 00:01:20 2 Q.My youngest one lives at home when she's not 00:01:22 3 A.in school. 00:01:27 4Are you and your wife currently living in the 00:01:27 5 Q.same household? 00:01:31 6Absolutely. 00:01:32 7 A.What is your educational background? 00:01:32 8 Q.I graduated with a degree in business 00:01:34 9 A.management from Worcester State College. 00:01:37 10Do you have any other formal education? 00:01:39 11 Q.No. Well, I have some -- I've been through a 00:01:42 12 A.police academy. 00:01:52 13Okay, which police academy? 00:01:57 14 Q.It was held in Southbridge in 1995. 00:01:59 15 A.Southbridge?00:02:03 16 Q.Southbridge, Mass., yes. 00:02:04 17 A.Okay. Tell me a little bit about your work 00:02:06 18 Q.history. 00:02:14 19How far back would you like me to go? 00:02:15 20 A.Well, let's go back 30 years. 00:02:19 21 Q.Oh, okay, that's pretty good. When I 00:02:21 22 A.graduated from college, I started working in 00:02:26 23the banking system. I worked as a customer 00:02:28 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
7service rep. 00:02:38 1
I worked as an assistant branch manager. 00:02:40 2I worked as a branch manager, and then finally 00:02:45 3I was working as a commercial loan officer. 00:02:51 4And what were the years that you engaged in 00:02:53 5 Q.that type of employment? 00:02:57 6From probably 1980 through about 1995. 00:02:59 7 A.And what did you do after that? 00:03:08 8 Q.I opened my security and investigation 00:03:10 9 A.company. 00:03:14 10And what is your security and investigation 00:03:14 11 Q.company? 00:03:17 12Metro Crime Prevention. 00:03:17 13 A.And are you the owner of Metro Crime? 00:03:20 14 Q.Yes, and I said that kind of quantitatively, 00:03:23 15 A.because my wife is considered the president, 00:03:30 16but that's only for -- at the time when I 00:03:33 17opened the company, I had -- I was divorced. 00:03:40 18
I was a second-time marriage person, and 00:03:45 19we didn't want my ex-wife to decide that she 00:03:48 20wanted to get her fingers into the company. 00:03:52 21Is it fair to say that you conduct all the 00:03:54 22 Q.day-to-day operations? 00:03:57 23I do all of the day-to-day operations. I 00:03:59 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
8manage the company. I do everything there is 00:04:02 1for it. 00:04:04 2So, you do all the hiring? 00:04:05 3 Q.Yes. 00:04:06 4 A.You do all the training? 00:04:07 5 Q.Yes. 00:04:08 6 A.Are you familiar with the financial status if 00:04:09 7 Q.you will of Metro Crime Prevention? 00:04:14 8Yes. 00:04:17 9 A.Have you had -- I'll withdraw that. You had 00:04:18 10 Q.mentioned that you had gone through the 00:04:27 11Southbridge Police Academy? 00:04:30 12Yes. 00:04:31 13 A.Were you a police officer at one time? 00:04:31 14 Q.In Worcester, I was a part-time police 00:04:35 15 A.officer. 00:04:36 16And for how long were you a police officer? 00:04:36 17 Q.For 15 years. 00:04:39 18 A.What were your duties as a part-time police 00:04:41 19 Q.officer? 00:04:44 20It really varied according to what we were 00:04:44 21 A.needed for. 00:04:48 22Were you considered an auxiliary police 00:04:50 23 Q.officer? 00:04:54 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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9Yes. 00:04:54 1 A.Does that mean that you were sort of on call, 00:04:54 2 Q.that you only came in when you were asked to 00:04:56 3come in? 00:04:59 4No, we worked regular hours. We worked 00:04:59 5 A.regular weekends. 00:05:02 6Would you say that you worked every weekend? 00:05:03 7 Q.No, I did not work every weekend. I would be 00:05:05 8 A.divorced right now if I did. 00:05:09 9How many hours -- back when you were a 00:05:11 10 Q.part-time police officer in Worcester, how 00:05:13 11many hours would you estimate that you worked 00:05:16 12per month? 00:05:20 1324. 00:05:20 14 A.24 hours per month? 00:05:21 15 Q.Yes. 00:05:23 16 A.And that's for 15 years? 00:05:23 17 Q.Yes. 00:05:26 18 A.And when did you start as a police officer in 00:05:26 19 Q.Worcester? 00:05:30 201981. 00:05:30 21 A.So, if my math is correct, you were a 00:05:32 22 Q.part-time police officer in Worcester from 00:05:35 231991 to 1996? 00:05:37 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
101981. 00:05:41 1 A.I'm sorry, 1981 to 1996?00:05:42 2 Q.'95. 00:05:44 3 A.1995, so about 14 years?00:05:45 4 Q.Yes.00:05:45 5 A.15 years, okay. 00:05:47 6 Q.Yes. 00:05:47 7 A.Can you be specific about the type of police 00:05:48 8 Q.training that you had? 00:05:52 9It's been a while. I really couldn't give you 00:05:54 10 A.the exact and specifics, but it was an 00:05:59 11abbreviated academy. 00:06:02 12Do you still remember some of your training? 00:06:05 13 Q.Yes, I would hope so. 00:06:08 14 A.Do you still utilize some of that training in 00:06:10 15 Q.your day-to-day activities with Metro Crime 00:06:13 16Prevention? 00:06:17 17Yeah, I would say I do. 00:06:18 18 A.Were you trained to observe, how to observe 00:06:19 19 Q.people in surroundings? 00:06:23 20No. At the time, we didn't do anything like 00:06:24 21 A.that from the academy. They were more 00:06:32 22interested at the time in specific laws we 00:06:35 23would be working under. 00:06:41 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
11Did you have any subsequent training in how to 00:06:43 1 Q.observe people in surroundings? 00:06:46 2Yes, I did.00:06:48 3 A.And where was that? 00:06:49 4 Q.I had taken a class through, a private 00:06:50 5 A.investigation class, a couple of them. 00:06:55 6Do you recall when that was? 00:06:57 7 Q.I couldn't tell you exactly. 00:06:58 8 A.Was it around the time you started Metro Crime 00:07:00 9 Q.Prevention or subsequent to it? 00:07:04 10Maybe a couple of years after that. 00:07:06 11 A.Did they train you how to write a report? 00:07:08 12 Q.Yes. 00:07:11 13 A.Have you had any training in public safety? 00:07:11 14 Q.Yes. 00:07:15 15 A.What type of training? 00:07:15 16 Q.Traffic control, crowd control. 00:07:17 17 A.Have you had any training in traffic safety? 00:07:25 18 Q.Yes. 00:07:28 19 A.Generally, are you familiar with public safety 00:07:30 20 Q.issues on public streets and sidewalks? 00:07:34 21Pretty much, yes.00:07:36 22 A.Would you say that you have expertise in that 00:07:37 23 Q.area? 00:07:41 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
12No, I would never say I have expertise in 00:07:41 1 A.anything. 00:07:43 2Would it be fair to describe you as a safety 00:07:43 3 Q.officer? 00:07:47 4No. 00:07:47 5 A.How would you describe yourself? 00:07:47 6 Q.I mean, my statement about myself would 00:07:51 7 A.probably be a Jack of all trades. I know a 00:07:57 8little bit about everything, but I'm not -- I 00:08:01 9can't say that I have specifics about 00:08:03 10everything --00:08:06 11Would it be fair to characterize you as a 00:08:06 12 Q.security officer? 00:08:11 13Yes. 00:08:11 14 A.In your opinion, is it safe to stand in the 00:08:12 15 Q.middle of a busy street in the direct path of 00:08:17 16motor vehicles? 00:08:21 17No, but if you're speaking of where people 00:08:22 18 A.stand in Boston when they're protesting, the 00:08:32 19lines are clearly marked. If they need be, 00:08:40 20could stand on the curbstone. We've also, as 00:08:45 21a Planned Parenthood put out a safety barrel 00:08:50 22to keep cars from coming too close to the 00:08:53 23corner itself. 00:08:58 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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13That barrel that you spoke of is directly in 00:08:59 1 Q.front of the clinic on Commonwealth Avenue; is 00:09:04 2that right? 00:09:07 3That's correct. 00:09:07 4 A.In fact, when you talk about the clinic in 00:09:08 5 Q.Boston, we're talking about the one at 00:09:11 61055 Commonwealth Avenue in Boston? 00:09:11 7Yes, sir. 00:09:14 8 A.
MR. DePRIMO: Can you mark this, 00:09:14 9please. 00:09:39 10
Mr. Baniukiewicz, I'm going to hand you what's 00:09:40 13 Q.been marked as Exhibit 1 in your deposition. 00:09:49 14Can you tell me if you recognize what's 00:09:52 15depicted in that photograph? 00:09:55 16
(Shown to the Witness.) 00:09:57 17Yes. It looks like a second Saturday of the 00:09:58 18 A.month with the pro-life people protesting 00:10:02 19Planned Parenthood. 00:10:07 20What makes you believe that they're protesting 00:10:08 21 Q.Planned Parenthood? 00:10:14 22From the item that's standing in front of the 00:10:15 23 A.gentleman one, two, three, third from the 00:10:23 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
14post. 00:10:27 1And does that item look to you to be a casket? 00:10:29 2 Q.It certainly does. 00:10:33 3 A.Could that be a memorial or prayer service 00:10:35 4 Q.instead of a protest? 00:10:40 5It can be anything that you would want to call 00:10:41 6 A.it, but it's definitely a protest from my 00:10:44 7knowledge from what I would know. 00:10:49 8Sure, okay, directing your attention again to 00:10:52 9 Q.Exhibit 1, do you see that yellow line --00:10:55 10Yes. 00:10:57 11 A.-- in the forefront? 00:10:58 12 Q.Yes. 00:10:59 13 A.To your knowledge, is that part of the present 00:11:00 14 Q.buffer zone --00:11:02 15Yes, it is.00:11:02 16 A.-- in Boston? 00:11:03 17 Q.Yes, it is. 00:11:03 18 A.Do you see the yellow line -- I'm sorry. I'll 00:11:04 19 Q.withdraw that. Do you see the white line 00:11:08 20that's next to the corner of the building? 00:11:10 21Yes. 00:11:12 22 A.That extends around? 00:11:12 23 Q.Yes. 00:11:13 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
15Is that the original 12-foot buffer line under 00:11:14 1 Q.the old buffer law? 00:11:18 2That is the 12-foot line as far as I can be 00:11:21 3 A.sure. 00:11:25 4Which line would it be safer for an individual 00:11:26 5 Q.to stand next to, the white line or the yellow 00:11:30 6line? 00:11:34 7Right now, the law says that they should be 00:11:34 8 A.standing behind the 35-foot buffer zone. 00:11:39 9Well, I'm not talking about the law. I'm just 00:11:42 10 Q.asking you generally from a safety 00:11:45 11perspective, is it safer to stand on a public 00:11:47 12sidewalk or is it safer to stand four or five 00:11:51 13feet in a street off the curb? 00:11:54 14And once again, I would say from my 00:11:57 15 A.perspective, and I'm probably going to delve 00:12:02 16into something that is going to be far 00:12:06 17reaching, but from what I know, the protesters 00:12:09 18are much safer to be behind the yellow line 00:12:12 19than to be up close to the building. 00:12:16 20Oh, I understand that, but let's not talk in 00:12:19 21 Q.term of protesters. Let's just talk in terms 00:12:23 22of generalities. 00:12:25 23General people can walk through the buffer 00:12:25 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
16zone without any question, without any fear of 00:12:29 1retribution of any kind. I mean, the sidewalk 00:12:34 2is free for people to walk through. 00:12:38 3
The buffer zone is set up so that if 00:12:41 4somebody is there protesting, that they can't 00:12:46 5approach the people coming into the clinic 00:12:52 6inside that zone. 00:12:57 7Okay, I think I understand your answer, but 00:12:58 8 Q.stay with me. I'm not asking you about the 00:13:05 9buffer zone. I'm not asking you whether or 00:13:08 10not people can or cannot go into the buffer 00:13:11 11zone. For purposes of this question, we'll 00:13:14 12assume the buffer zone law does not exist.00:13:17 13
My question to you, is it safer as a 00:13:20 14general matter to stand in the street next to 00:13:21 15the yellow line or is it safer to stand on the 00:13:24 16sidewalk next to the white line? 00:13:27 17If we're talking no buffer zone being 00:13:29 18 A.available, it would be safer for them to be on 00:13:36 19the street, on the sidewalk. If we're talking 00:13:39 20buffer zones, then it should be outside of the 00:13:45 21buffer zone for their safety. 00:13:48 22Thank you.00:13:50 23 Q.
MR. DePRIMO: Would you mark this, 00:13:50 24DEPOSITION OF MICHAEL BANIUKIEWICZ
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29If there was an issue, they would give me a 00:28:19 1 A.call, and they would mark the issue with me, 00:28:23 2and I would correct it. 00:28:27 3Generally, what type of concerns do they raise 00:28:28 4 Q.with you? 00:28:32 5Mostly, the problems are with my guys at times 00:28:32 6 A.not showing up on time. Other than that, you 00:28:39 7know, we don't really have many problems in 00:28:43 8Worcester or Springfield with my guys not 00:28:48 9handling their jobs to the satisfaction of the 00:28:51 10clinic. 00:28:56 11How many people do you employ approximately? 00:28:56 12 Q.25. 00:29:00 13 A.And how many of those employees are assigned 00:29:04 14 Q.to Planned Parenthood? 00:29:08 15Six. 00:29:09 16 A.Who is your largest client or customer? 00:29:12 17 Q.In general? 00:29:16 18 A.For Metro Crime Prevention? 00:29:20 19 Q.I don't know if I feel comfortable with 00:29:21 20 A.answering that. 00:29:28 21You don't have to give me the specific name of 00:29:28 22 Q.the company or the name of the organization, 00:29:28 23if you could just give me an idea of what they 00:29:32 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
30do? 00:29:34 1I deal with a private school. 00:29:34 2 A.So, you characterize the private school as 00:29:40 3 Q.your largest client or customer? 00:29:44 4Yes. 00:29:46 5 A.And how much does this private school pay your 00:29:47 6 Q.company per year approximately? 00:29:51 7Probably about a half a million dollars a 00:29:53 8 A.year. 00:29:57 9And how about the next largest customer or 00:29:57 10 Q.client, what would that be? 00:30:02 11Probably $175,000 a year. 00:30:04 12 A.Let me see if I understand this. So, your 00:30:13 13 Q.largest client would pay you about $500,000 a 00:30:21 14year? 00:30:25 15Yes. 00:30:25 16 A.And Planned Parenthood pays you about $250,000 00:30:27 17 Q.a year?00:30:27 18Yes.00:30:27 19 A.And then your third largest client pays you 00:30:28 20 Q.about $175,000 a year? 00:30:30 21Yes. 00:30:31 22 A.Does the name Eleanor McCullen mean anything 00:30:31 23 Q.to you? 00:30:37 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
31Besides that she's listed on the (indicating). 00:30:38 1 A.Complaint? 00:30:45 2 Q.Yes. 00:30:45 3 A.Apart from the fact that you could read her 00:30:46 4 Q.name on the face page of the complaint, does 00:30:49 5that name mean anything to you? 00:30:52 6
MS. VIATOR: Just to be clear, the 00:30:52 7Witness was pointing to Exhibit 3 I believe, 00:30:53 8not the complaint. He was pointing to the 00:30:56 9subpoena. 00:30:57 10
MR. DePRIMO: I stand corrected. 00:30:58 11I know of her. I know what she looks like. 00:30:59 12 A.I've seen her around the clinic. 00:31:05 13Can you identify her? 00:31:08 14 Q.If I saw her picture, I probably could. I 00:31:09 15 A.usually see her at a distance, but I'm pretty 00:31:14 16certain dark hair, short dark hair, kind of 00:31:19 17curly, thinly built. 00:31:22 18How old is she approximately? 00:31:24 19 Q.That's 50 or 100, it's tough to say. I'd say 00:31:26 20 A.she's probably mid-40s to mid-50s maybe. 00:31:32 21Does the name Nancy Clark mean anything to 00:31:37 22 Q.you? 00:31:42 23No, I can't say as it does. 00:31:42 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
32You wouldn't be able to identify her if you 00:31:48 1 Q.saw her? 00:31:51 2Probably not. I can identify a lot of the 00:31:52 3 A.people that are at the clinics by sight. Like 00:31:57 4for me to tell you their names is impossible. 00:32:04 5So, you wouldn't be able to pick Nancy Clark 00:32:07 6 Q.out of a lineup? 00:32:12 7Probably not. 00:32:13 8 A.Getting back to Eleanor McCullen, have you had 00:32:14 9 Q.any interactions with her? 00:32:19 10One on one, a couple I believe. 00:32:20 11 A.Can you describe those interactions? 00:32:27 12 Q.They were mainly to tell her that, you know, 00:32:32 13 A.she didn't belong in the buffer zone and to 00:32:35 14move back. 00:32:39 15And where was she standing at that time? 00:32:39 16 Q.To the right of Planned Parenthood in Boston 00:32:45 17 A.opposite Alcorn Street inside of the buffer 00:32:52 18zone. 00:32:55 19So, if we're looking directly at Planned 00:32:56 20 Q.Parenthood say from across the street, across 00:33:02 21the railroad tracks? 00:33:04 22If you're looking at Planned Parenthood from 00:33:05 23 A.the railroad tracks, she would have been on 00:33:09 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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33the right-hand side. 00:33:11 1What date was that when you saw her? 00:33:11 2 Q.I couldn't give you a date. It's been a 00:33:15 3 A.while, so. 00:33:17 4Approximately? 00:33:19 5 Q.Maybe a year ago. 00:33:19 6 A.Could you describe to me the time of day? 00:33:22 7 Q.It would have been between the hours of 8:30 00:33:25 8 A.and 11:30. 00:33:30 9Do you remember what day of the week it was?00:33:31 10 Q.It would more than likely have been on a 00:33:34 11 A.Saturday. 00:33:37 12How about any other interactions with her? 00:33:37 13 Q.Not so many, we try to stay inside of the 00:33:42 14 A.building unless there is a situation that 00:33:52 15requires us to go out and deal with whatever 00:33:56 16may be going on outside on the sidewalk. 00:34:00 17Let's talk a little bit about that. In Boston 00:34:02 18 Q.on Commonwealth Avenue, how often do you visit 00:34:07 19that particular facility? 00:34:10 20At least once a week. 00:34:11 21 A.And what days do you go visit it? 00:34:12 22 Q.Any day that I feel that I can get out there. 00:34:14 23 A.What hours of the day would you visit? 00:34:17 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
34Once again, any time I can get out there. You 00:34:18 1 A.know, there are some specifics when I actually 00:34:21 2squeeze into a uniform and go out and work a 00:34:24 3shift when somebody can't show up or needs a 00:34:27 4day off, but, you know, I keep my schedule 00:34:33 5very free when I go out to any of my sites so 00:34:37 6that my guys don't know to clean up and shave 00:34:42 7and be ready for me. 00:34:46 8What else have you observed about 00:34:48 9 Q.Eleanor McCullen? 00:34:51 10Eleanor tends to be one of the people who is a 00:34:52 11 A.little bit loud at times calling out to the 00:34:58 12people coming into the clinic, but, you know, 00:35:05 13that's a natural effect with most of the 00:35:10 14people that are there giving out information. 00:35:13 15When you observed Eleanor, is she most likely 00:35:22 16 Q.standing on the right side of the buffer zone? 00:35:27 17Not necessarily, Eleanor moves around. They 00:35:30 18 A.all move around. Nobody really stands in one 00:35:34 19specific spot. 00:35:37 20When you say she's loud, would somebody have 00:35:38 21 Q.to be loud to call to somebody who's 90 feet 00:35:42 22away? 00:35:47 23Not necessarily. 00:35:47 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
35Would they have to be loud if there are trains 00:35:49 1 Q.passing? 00:35:53 2Once again, 90 feet isn't that great of a 00:35:54 3 A.distance. I don't really think that you have 00:35:58 4to be excessively loud to have anybody hear 00:36:01 5you. 00:36:05 6Is she excessively loud? 00:36:07 7 Q.Well, everybody is excessively loud at some 00:36:11 8 A.time. 00:36:17 9Have you observed her be excessively loud? 00:36:17 10 Q.I observed everybody that comes into, that is 00:36:21 11 A.there, voices their opinion to be loud at some 00:36:23 12point in time. 00:36:27 13What other observations have you made about 00:36:27 14 Q.Eleanor McCullen? 00:36:31 15She attempts to hand out her literature. They 00:36:32 16 A.all do. She does her or everybody does their 00:36:40 17pacing around the outside of the buffer zone. 00:36:48 18She has gotten into conversations with people 00:36:57 19that you stand back and hope nothing is to 00:37:02 20going to happen, because she can tend to, with 00:37:08 21everybody they can tend to say things that can 00:37:12 22irritate the escorts of the clients that are 00:37:16 23coming in. 00:37:21 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
36Well, let's be very specific. What have you 00:37:21 1 Q.heard Eleanor McCullen say specifically that 00:37:26 2might irritate somebody? 00:37:30 3I've heard the statement, mommy, don't kill 00:37:30 4 A.me. I've heard the statement that this is 00:37:36 5Hitler's death camp. 00:37:43 6Again, have you heard Eleanor McCullen make 00:37:46 7 Q.these statements or are these just general 00:37:50 8statements that you've heard? 00:37:52 9No, I've heard Eleanor McCullen make these 00:37:52 10 A.statements. 00:37:56 11And when did you hear her make those 00:37:56 12 Q.statements? 00:37:58 13Once again, you know, I can't give you 00:37:58 14 A.specific dates. You know, I don't have dates 00:38:00 15listed down. My normal time when I really 00:38:03 16have a chance to observe things are on 00:38:06 17Saturdays when I go there and when I have to 00:38:09 18put on a uniform and work, and I will work the 00:38:12 19front door. 00:38:14 20So, when you're observing Eleanor McCullen, 00:38:14 21 Q.it's most likely on a Saturday; is that right? 00:38:17 22I don't observe any one specific person. 00:38:20 23 A.That's not my job. My job when I'm there is 00:38:22 24
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37to make sure that things are safe in or around 00:38:26 1the clinic. So, for me to, you know, zero in 00:38:31 2on Eleanor all the time, I can't. I don't do 00:38:36 3that. 00:38:39 4Are most of your observations with Eleanor 00:38:39 5 Q.when you're in uniform? 00:38:42 6No, I've observed her outside of uniform when 00:38:44 7 A.I've come out, you know, at different times. 00:38:48 8Once again, you know, if you're going to ask 00:38:50 9me for a specific date and time, I can't do 00:38:52 10that. 00:38:56 11
I'm not that good to be able to give you 00:38:57 12the exact dates, and I certainly don't list 00:39:00 13them down, because, you know, it's the same 00:39:04 14stuff all the time. 00:39:07 15Were crowds of people there when you observed 00:39:09 16 Q.Eleanor? 00:39:13 17The crowds are only there on the second 00:39:13 18 A.Tuesday of, the second Saturday of the month, 00:39:17 19which is when everybody seems to congregate to 00:39:21 20protest or to send out their message. I lost 00:39:28 21my train of thought. I'm sorry. 00:39:38 22Are you finished with your answer? 00:39:40 23 Q.Yeah, I am. I totally lost what I was saying. 00:39:53 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
38I'm sorry. 00:39:57 1Any other observations specific to 00:39:58 2 Q.Eleanor McCullen? 00:40:00 3I can't make specifics as I said, you know, 00:40:01 4 A.except for the few times that I've been able 00:40:05 5to notice things going on. 00:40:07 6What else do you know about Eleanor McCullen? 00:40:10 7 Q.I don't know very much about her. I don't 00:40:13 8 A.need to know anything about her. I don't wish 00:40:17 9to know, you know, and I'm not being brash or 00:40:20 10mean. I don't need to know anything about her 00:40:24 11personal life or her personally. I'm there to 00:40:30 12do a job in general, and that's what I do.00:40:34 13Does the name Eleanor McCullen appear in any 00:40:36 14 Q.of the reports that you or your security 00:40:39 15officers have written in the past three and a 00:40:42 16half years? 00:40:45 17I would say they probably might mention her if 00:40:46 18 A.my guys, and I'm sure my people would know 00:40:51 19specifically who each and every protester that 00:40:56 20are there on a regular basis. 00:41:00 21Have you ever actually seen her name in a 00:41:02 22 Q.report? 00:41:04 23No, I can't say as I have. 00:41:05 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
39Have you ever written her name down in any 00:41:07 1 Q.report? 00:41:10 2No. 00:41:10 3 A.Does the name Mark Bashour mean anything to 00:41:10 4 Q.you? 00:41:22 5The name Mark rings a bell, but I'm not sure 00:41:22 6 A.if it's the same Mark that you're mentioning. 00:41:29 7I'll ask you again. Does the name 00:41:34 8 Q.Mark Bashour mean anything to you? 00:41:37 9Mark Bashour doesn't ring a bell, no.00:41:38 10 A.Can you identify him if you saw him? 00:41:40 11 Q.Probably not. 00:41:42 12 A.You couldn't pick him out of a lineup; could 00:41:43 13 Q.you? 00:41:47 14No, I'm sorry. No, I couldn't. 00:41:47 15 A.Does the name Cyril Shea mean anything to you? 00:41:50 16 Q.No.00:41:55 17 A.You couldn't identify him either; could you? 00:41:56 18 Q.No. 00:41:58 19 A.You couldn't pick him out of a lineup?00:41:58 20 Q.No.00:41:58 21 A.Does the name Greg Smith mean anything to you? 00:41:59 22 Q.No. 00:42:03 23 A.You couldn't identify him either? 00:42:03 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
40No. As I say, I'm not familiar with names. 00:42:06 1 A.You know, faces I could probably point out and 00:42:10 2say, you know, I've seen this person. I've 00:42:13 3seen that person. I've seen that person at 00:42:14 4the clinic, but the names I really am at a 00:42:15 5loss. 00:42:20 6How many people would you estimate are out at 00:42:20 7 Q.the clinic on the second Saturday of the 00:42:24 8month? 00:42:27 9It ranges. You could have anywhere from 30 to 00:42:27 10 A.50 people.00:42:36 11Let me qualify that. I'm talking about 00:42:36 12 Q.Boston. 00:42:37 13Yes. 00:42:37 14 A.30 to 50 people?00:42:37 15 Q.The Boston Police actually put up barriers. 00:42:40 16 A.Does the namer Eric Cadin mean anything to 00:42:44 17 Q.you, C-a-d-i-n? 00:42:49 18No. 00:42:51 19 A.Could you identify him?00:42:51 20 Q.Probably not. 00:42:53 21 A.Does the name Jean Blackburn Zarrella mean 00:42:54 22 Q.anything to you? 00:42:58 23No. 00:42:59 24 A.
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41Could you identify her? 00:42:59 1 Q.No. 00:43:00 2 A.You couldn't pick her out of a lineup either? 00:43:00 3 Q.No. 00:43:02 4 A.How often do you visit the Planned Parenthood 00:43:02 5 Q.in Worcester? 00:43:08 6Worcester is close to my office, so I tend to 00:43:08 7 A.go over there maybe a little bit more, maybe 00:43:12 8twice a week. 00:43:18 9Are you familiar with the physical layout --00:43:19 10 Q.Yes. 00:43:21 11 A.-- on Pleasant Street? 00:43:21 12 Q.Yes. 00:43:23 13 A.Is that a fairly new building that's been 00:43:23 14 Q.erected that Planned Parenthood is in? 00:43:28 15Yes, it is. 00:43:28 16 A.Do you recall when that was built? 00:43:29 17 Q.2009 possibly. 00:43:31 18 A.Where was Planned Parenthood located before 00:43:35 19 Q.that, Planned Parenthood in Worcester?00:43:37 20Lincoln Street. 00:43:40 21 A.Do you know how long they were there? 00:43:41 22 Q.Since before I worked for them, and like I 00:43:42 23 A.say, I've been there since 1996/97, so they 00:43:46 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
42were there well before that. 00:43:50 1So, just to clarify, you provided security 00:43:52 2 Q.services for Planned Parenthood in Worcester 00:43:53 3for about 15 years, too; is that right? 00:43:56 4Yes, sir. 00:43:58 5 A.Are you familiar with the physical layout of 00:43:59 6 Q.Planned Parenthood in Worcester? 00:44:02 7Yes, I am. 00:44:03 8 A.How many driveway entrances are there into the 00:44:03 9 Q.Planned Parenthood parking lot? 00:44:07 10There's one. 00:44:07 11 A.Where's that driveway located?00:44:08 12 Q.On Dewey Street. 00:44:10 13 A.Are there any driveways on Pleasant Street 00:44:10 14 Q.that allow for vehicle access in or out of the 00:44:14 15parking lot? 00:44:19 16No, they're quantitative statement. There is 00:44:19 17 A.an emergency vehicle entrance, but that's 00:44:25 18pretty much locked down. It's only opened if 00:44:31 19they need to bring an ambulance in. 00:44:35 20Where is the emergency vehicle entrance 00:44:38 21 Q.located? 00:44:42 22On Pleasant Street a few yards up from the 00:44:42 23 A.corner of Dewey Street. 00:44:46 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
43Would that be if we're looking directly at the 00:44:49 1 Q.Planned Parenthood building from across the 00:44:56 2street on Pleasant Street, would that be to 00:44:58 3the right? 00:45:01 4If you're looking at Planned Parenthood from 00:45:02 5 A.across the street, it would be more to the 00:45:05 6left. If I'm looking -- if I'm across the 00:45:09 7street and Planned Parenthood -- if I'm on 00:45:13 8this side of the street on how do I say this, 00:45:15 9on my right-hand side. 00:45:19 10Now, let me see if I've got it. I don't mean 00:45:21 11 Q.to interrupt you, but let me see if I can sort 00:45:22 12of set this up. 00:45:23 13Sure.00:45:23 14 A.We're on Pleasant Street.00:45:24 15 Q.Yes.00:45:24 16 A.We're standing on the sidewalk across from 00:45:27 17 Q.Planned Parenthood, so we're looking directly 00:45:29 18at the Planned Parenthood building across 00:45:31 19Pleasant Street.00:45:31 20Yes.00:45:31 21 A.On which side of the Planned Parenthood 00:45:36 22 Q.building is that emergency driveway? 00:45:37 23It would be towards the left. 00:45:39 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
44Are you familiar with a fence that's been 00:45:41 1 Q.erected --00:45:44 2Yes. 00:45:44 3 A.-- at the Planned Parenthood in Worcester? 00:45:44 4 Q.Yes. And that does have access if it needed 00:45:46 5 A.to be for emergency vehicles, but that's all 00:45:52 6that that does. 00:45:56 7When you say that there's access, there's 00:45:57 8 Q.access where? 00:46:01 9There should be a locked gate type to allow 00:46:02 10 A.the fence to open to allow emergency vehicles 00:46:11 11in. 00:46:15 12Correct me if I'm wrong, is the fence that 00:46:15 13 Q.we're talking about a large metal fence with 00:46:17 14some small openings in it? 00:46:21 15Yes. 00:46:23 16 A.Is there a point along a concrete pathway 00:46:23 17 Q.along from -- actually, from the public 00:46:27 18sidewalk to the entrance of Planned 00:46:32 19Parenthood; are you following me with that? 00:46:34 20Yes.00:46:36 21 A.Is there an entrance there or a split in 00:46:37 22 Q.fences where somebody could walk through 00:46:40 23there? 00:46:43 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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45
Yes, there is. 00:46:43 1 A.Is that large enough for a vehicle to go 00:46:44 2 Q.through? 00:46:47 3No. 00:46:48 4 A.You've never seen a vehicle go through there?00:46:48 5 Q.No.00:46:48 6 A.It's not intended for a vehicle to go through 00:46:49 7 Q.there?00:46:49 8No. Like I said, it's supposed to be set up 00:46:52 9 A.for emergency vehicles. Can I take my coat 00:46:55 10off? 00:47:00 11Of course. Would you like to take a break? 00:47:00 12 Q.No.00:47:03 13 A.What are your views on abortion? 00:47:13 14 Q.I believe in women's rights. I believe that a 00:47:15 15 A.woman should have a choice. She has a free 00:47:30 16will. 00:47:34 17
I believe that abortion has a definite 00:47:35 18place in society, and I believe it should be 00:47:41 19left up to the judgment of the individual 00:47:45 20person to make their own decisions as what 00:47:49 21they want to do with their lives. 00:47:55 22So, would it be fair to say that your answer 00:47:57 23 Q.to that question is that you believe that a 00:48:01 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
46
woman has a right to have an abortion? 00:48:01 1Absolutely. 00:48:05 2 A.What are your views on pro-life demonstration 00:48:05 3 Q.outside of clinics? 00:48:11 4I believe that they have the, that people have 00:48:12 5 A.the freedom of speech to say whatever they 00:48:17 6want to a point, but they have the right to 00:48:23 7say whenever they want. 00:48:25 8
I believe that at times they are taking 00:48:30 9their physical well-being in their own hands 00:48:35 10when they say some of the things that are 00:48:42 11said, because people that are walking into the 00:48:45 12clinics at the time they're coming are coming 00:48:50 13in at probably their most vulnerable point in 00:48:51 14their life. 00:48:55 15
They're making a decision that will 00:48:56 16affect them literally until the day they die, 00:48:58 17and the people that are coming in with them 00:49:04 18are trying to keep the patient as calm and as 00:49:06 19sedate, if that's the word I want to use, as 00:49:19 20they possibly can, and there are times when 00:49:22 21there are things said to people that, you 00:49:26 22know, would certainly, if it was me bringing a 00:49:28 23patient into the clinic, would push me over 00:49:32 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
47
the edge. 00:49:35 1When you say people bringing someone into the 00:49:36 2 Q.clinic, specifically what type of people are 00:49:42 3you talking about? 00:49:46 4Planned Parenthood is not just an abortion 00:49:47 5 A.millhouse. Planned Parenthood is a place for 00:49:52 6people to come for any one of a number of 00:49:58 7sexual health issues. Planned Parenthood does 00:50:04 8everything from providing contraception to HIV 00:50:09 9testing to STD testing to abortions. 00:50:15 10
They do the whole gamut of what is 00:50:23 11necessary to keep a person sexually healthy. 00:50:28 12Somebody bringing in a person who may need STD 00:50:35 13testing and to hear people yelling, you know, 00:50:40 14Mommy, don't kill my baby, can tend to upset a 00:50:44 15person, especially when they're not coming in 00:50:50 16for a procedure. 00:50:52 17Would it be fair to say that you're describing 00:50:52 18 Q.companions of patrons of Planned Parenthood? 00:50:56 19Yes. When I say escorts, I'm saying 00:50:57 20 A.companions, yes.00:50:57 21You're not talking about what we might call 00:50:59 22 Q.Planned Parenthood escorts? 00:51:01 23Absolutely not. They're a whole -- that's a 00:51:02 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
48
whole different set of people, and if I had to 00:51:04 1mention them, I would mention them as Planned 00:51:07 2Parenthood escorts. 00:51:10 3If I am correct in what you said, I believe 00:51:10 4 Q.you said, correct me if I'm wrong, that having 00:51:15 5an abortion is one of the most important 00:51:17 6decisions a woman can make in her whole life; 00:51:20 7is that right?00:51:23 8Yes.00:51:23 9 A.Do you believe that a woman should be made 00:51:24 10 Q.aware of all the alternatives of having an 00:51:26 11abortion at that most important point in her 00:51:30 12life?00:51:33 13I think that when a woman comes to Planned 00:51:34 14 A.Parenthood, she's already made a decision that 00:51:37 15is important. Well, it's been made by 00:51:45 16everything that she knows about herself and 00:51:56 17about her surroundings, if that's another good 00:51:59 18word for it. 00:52:06 19
I don't believe that what is said by the 00:52:10 20pro-life people any way helps that decision 00:52:16 21for her. They're making statements that 00:52:21 22frankly are going to irritate to the point of 00:52:32 23making people, excuse me, pissed off, and I'm 00:52:38 24
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49sorry. I didn't mean to have to use that, but 00:52:43 1that was all I could think of. 00:52:47 2
I think their message isn't to help the 00:52:50 3person that's coming in. It's to keep them 00:52:59 4from having a procedure done. I also don't 00:53:03 5think that they can fully understand, that 00:53:08 6they, the pro-life people, fully understand 00:53:14 7what's going on inside a woman's mind when, 00:53:18 8you know, she's coming in to have something 00:53:21 9done. 00:53:25 10This is your personal opinion; correct?00:53:25 11 Q.My personal opinion. 00:53:26 12 A.Do you know for a fact that every woman who 00:53:27 13 Q.comes in to Planned Parenthood for an abortion 00:53:30 14has absolutely made up her mind? 00:53:34 15I would say that 95 percent, maybe more, have 00:53:37 16 A.made up their mind. There have been a few 00:53:41 17people who have left, but it's few and far 00:53:42 18between. 00:53:46 19It's your testimony that you know for a fact 00:53:46 20 Q.that 95 percent of the women that go into 00:53:49 21Planned Parenthood for an abortion have 00:53:54 22absolutely made up their mind before they walk 00:53:54 23in? 00:53:57 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
50I can't say that for a fact. 00:53:57 1 A.So, you don't really know? 00:53:58 2 Q.I don't know what's in their minds, but I do 00:53:59 3 A.know that when they come in, you know, they've 00:54:02 4already plotted out what they're doing. 00:54:05 5Do some women who seek an abortion, do they 00:54:07 6 Q.suffer from some type of economic hardship? 00:54:10 7I think that might be a problem, yes. 00:54:13 8 A.Do you think some women may be pressured by 00:54:14 9 Q.their husbands or boyfriends to have an 00:54:16 10abortion? 00:54:20 11To some extent. 00:54:20 12 A.Yes? 00:54:22 13 Q.Well, yes, but to some extent, because if they 00:54:23 14 A.really -- once again, if they really don't 00:54:28 15want to be there for that procedure, you know, 00:54:32 16it's their body. It's what they want to do. 00:54:35 17So, they should be able to be able to make -- 00:54:39 18 Q.I'll withdraw that. They have the right to 00:54:45 19make an informed choice is your opinion; is 00:54:46 20that right? 00:54:49 21Yes, I do, and I think they do. 00:54:49 22 A.Do you think some women may struggle with 00:54:52 23 Q.career versus motherhood, and that might 00:54:57 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
51influence their decision to have an abortion?00:55:00 1
MR. SALINGER: Michael, at this 00:55:00 2point, I'm going to object. I've been very 00:55:05 3patient, but this line of questioning has 00:55:06 4nothing whatsoever to do with the main issue 00:55:06 5in this case as specified by Judge Tauro, and 00:55:10 6we ask that you limit yourself to questions 00:55:15 7that are reasonably calculated to lead to 00:55:18 8discovery of admissible information. 00:55:21 9
MR. DePRIMO: I think this is 00:55:25 10relevant, but I'll move on. 00:55:25 11Have you ever acted as an escort in a clinic? 00:55:26 12 Q.What do you mean by that? 00:55:30 13 A.Have you ever donned a Planned Parenthood 00:55:30 14 Q.vest --00:55:32 15No.00:55:32 16 A.-- at any clinic? 00:55:32 17 Q.Absolutely not. 00:55:34 18 A.In your capacity as a security guard, have you 00:55:34 19 Q.ever escorted a patron of Planned Parenthood 00:55:39 20from some point on a sidewalk into the 00:55:41 21building? 00:55:46 22Yes. 00:55:46 23 A.And why did you do that? 00:55:46 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
52At the time when the barriers were less than 00:55:47 1 A.what they are right now, the protesters would 00:55:52 2walk people right up and into the doorway, 00:55:55 3whether they wanted to listen to them or not, 00:56:00 4and I have physically gone out and escorted by 00:56:04 5putting my hands on their backs, the patients, 00:56:10 6into the door so that they could get into the 00:56:13 7door, because they were being accosted as such 00:56:17 8that they couldn't go anywhere. 00:56:21 9Have you escorted anybody subsequent to the 00:56:22 10 Q.enactment of a new buffer zone law? 00:56:26 11No, I haven't. We haven't had to, because the 00:56:30 12 A.buffer zone gives them the ability to get into 00:56:34 13the building without being stopped. 00:56:37 14What has Planned Parenthood instructed you 00:56:40 15 Q.concerning demonstrators with respect to the 00:56:45 16buffer zone? 00:56:48 17Planned Parenthood wants us to abide by the 00:56:49 18 A.law. Planned Parenthood wants us to be 00:56:53 19certain that, you know, that both sides of the 00:56:56 20spectrum are abiding by the buffer zone. 00:56:59 21What is your understanding of what that means? 00:57:03 22 Q.What is your understanding of the law with 00:57:07 23respect to people coming in and out of the 00:57:09 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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53buffer zone? 00:57:11 1What the buffer zone means to me is that there 00:57:12 2 A.is a 35-foot radius around the door. No 00:57:16 3transfer of information can be done within 00:57:22 4that buffer zone. That includes the escorts. 00:57:26 5The escorts aren't supposed to speak with the 00:57:31 6patients as the right-to-life people are not 00:57:36 7supposed to. 00:57:41 8Do you ever see escorts walking inside the 00:57:41 9 Q.zone? 00:57:45 10Once in a while, but at the point at which 00:57:45 11 A.they do, the patient is already into the door, 00:57:53 12so all they've done is gone over and opened 00:58:01 13the door for them. 00:58:05 14Where would these escorts be with relation to 00:58:06 15 Q.the buffer zone, and I'm talking subsequent to 00:58:09 16the enactment of the new buffer law? 00:58:11 17Before the new law? 00:58:14 18 A.I'm talking subsequent to the new law. 00:58:16 19 Q.Okay. So, within the new law, they also stay 00:58:17 20 A.outside of the buffer zone area. 00:58:21 21The they is? 00:58:23 22 Q.The escorts. 00:58:24 23 A.Is it your testimony that you've never 00:58:27 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
54observed an escort walk somebody through the 00:58:29 1buffer zone to the door at Planned Parenthood 00:58:33 2in Boston? 00:58:35 3Not that I've ever seen. 00:58:35 4 A.Do you know who measured out the buffer zones 00:58:38 5 Q.at either Springfield, Worcester, or Boston? 00:58:42 6The Department of Public Works put up the 00:58:45 7 A.buffer zone in Worcester. The City of 00:58:49 8Springfield measured out the buffer zone area 00:58:55 9in Springfield. I'm not sure whether it was 00:59:02 10the DPW or who it was. 00:59:05 11
And in Boston, when it was first marked, 00:59:08 12I did it with at that time the person who was 00:59:16 13the head of the government services. It had 00:59:20 14been subsequently measured and rewritten by 00:59:26 15the City of Boston from what I understand. 00:59:28 16With respect to Springfield and Worcester, do 00:59:31 17 Q.you know who decided where the buffer zones 00:59:36 18would be placed? 00:59:38 19I would have imagined that it would have been 00:59:39 20 A.the City of Worcester and the City of 00:59:44 21Springfield. It had to have been measured 00:59:48 22around the entryway, because that's the way 00:59:52 23the buffer zone law is written, that it 00:59:55 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
55radiuses the entrance of the clinics. 00:59:58 1You said you imagined. Does that mean you 01:00:03 2 Q.actually don't know for a fact who decided 01:00:07 3which buffer zones would be placed where? 01:00:09 4I couldn't tell you. I wasn't involved with 01:00:11 5 A.that at the time. At the time we were trying 01:00:14 6to get the buffer zones in in Worcester, it 01:00:17 7was a fiasco. Nobody wanted to do the job. 01:00:23 8Everybody was pointing at everybody else as it 01:00:32 9to be their job to measure out the buffer 01:00:36 10zone. 01:00:41 11Who requested that buffer zones be placed on 01:00:41 12 Q.the streets? 01:00:44 13Planned Parenthood. 01:00:45 14 A.Is it your belief that pro-life advocates do 01:00:46 15 Q.not have a right to talk to somebody who's 01:00:52 16inside the buffer zone? 01:00:55 17It is my belief that if a person is inside 01:00:56 18 A.that buffer zone and they're going into a 01:01:01 19clinic, they have the right inside that bubble 01:01:04 20to decide if they want to go outside of the 01:01:07 21bubble and speak with the pro-life people. If 01:01:10 22they want to come into the clinic, they have 01:01:14 23the right to go into the clinic. 01:01:16 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
56That buffer zone bubble area is almost 01:01:19 1
like a dead man's zone. It's a neutral area. 01:01:23 2They have the right when they're inside of 01:01:27 3that to decide what they want to do for 01:01:30 4yourselves. 01:01:33 5And you may have misunderstood my question. 01:01:33 6 Q.When somebody is inside the zone, a patron 01:01:36 7let's say is inside that zone, and a pro-life 01:01:39 8advocate is outside the zone, does the 01:01:40 9pro-life advocate have the right to speak to 01:01:43 10that patron who's inside the zone from outside 01:01:47 11the zone? 01:01:50 12You know, we go to the freedom of speech at 01:01:51 13 A.that point I believe. You know, they can -- 01:01:58 14the people outside the buffer zone can say 01:02:00 15whatever they want. If the person that is 01:02:03 16inside the buffer zone wants to speak with 01:02:06 17them, then they have the right to walk outside 01:02:09 18of the buffer zone to speak with them. 01:02:13 19Do you recall testifying before the 01:02:14 20 Q.Legislature in May 2007? 01:02:18 21Yes. 01:02:19 22 A.Do you recall testifying that there was an 01:02:20 23 Q.instance under the old buffer law where you 01:02:22 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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57were inside the zone, and a pro-life advocate 01:02:28 1was talking to you, and you told that pro-life 01:02:31 2advocate that she has no right to talk with 01:02:32 3you? 01:02:34 4Yes. 01:02:34 5 A.Do you believe that today? 01:02:34 6 Q.Yes. 01:02:36 7 A.When it comes to conveying a message, do you 01:02:36 8 Q.know whether or not a sign is more effective 01:02:43 9than a piece of paper? 01:02:47 10Just let me gather my thought here for a 01:02:48 11 A.second. A piece of paper is okay. You can 01:02:55 12hand it to somebody. They can look at it or 01:02:58 13they can throw it away. 01:02:58 14
A sign, whether or not somebody wants to 01:03:01 15see it, they're going to see it. Whether or 01:03:04 16not they want to read it, they're going to 01:03:07 17read it. So, if I were to say which one is 01:03:09 18more effective, I would probably say the sign 01:03:16 19is more effective. 01:03:18 20But do you know for a fact which one is more 01:03:18 21 Q.effective? 01:03:21 22I don't. 01:03:22 23 A.Do you know whether a sign is more effective 01:03:23 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
58than face-to-face conversation? 01:03:26 1Face-to-face conversation is always the best 01:03:28 2 A.if both parties wish to speak to one another. 01:03:36 3As a general rule though, face-to-face 01:03:40 4 Q.conversation is better than a sign; is that 01:03:45 5your opinion? 01:03:47 6As I say, you know, if both parties want to 01:03:48 7 A.converse, if not and a person wants to get 01:03:53 8their message through, they can put up a sign, 01:03:56 9somebody's going to have to look at. 01:03:59 10Would it be fair to say that Planned 01:03:59 11 Q.Parenthood officials would prefer that 01:04:02 12pro-life counsellors not come to the clinic? 01:04:04 13They probably wouldn't, but I'd be out of a 01:04:07 14 A.job. 01:04:14 15In your capacity as a security officer, would 01:04:14 16 Q.you prefer that there be no pro-life 01:04:20 17counsellors outside the clinics? 01:04:23 18Yes, I think it would be beneficial for all 01:04:26 19 A.parties. 01:04:33 20Have you ever seen any pro-life literature 01:04:33 21 Q.inside an abortion clinic? 01:04:41 22No. We specifically won't allow it to come 01:04:42 23 A.into the building. If somebody wants to keep 01:04:48 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
59it, we would make them put it in their 01:04:51 1vehicle. 01:04:55 2When you say we, who are speaking of? 01:04:55 3 Q.I'm speaking of my officers. 01:04:57 4 A.Is that also Planned Parenthood's position as 01:05:00 5 Q.far as you know? 01:05:03 6Yes. 01:05:03 7 A.Does Planned Parenthood put out any pro-life 01:05:03 8 Q.information inside the clinic? 01:05:08 9Pro-life information? 01:05:10 10 A.Pro-life information. 01:05:11 11 Q.Not that I know of, no. 01:05:12 12 A.Do you ever see any posters inside the clinic 01:05:13 13 Q.that say choose life? 01:05:17 14No. 01:05:17 15 A.Do you ever see any literature or posters 01:05:17 16 Q.inside the clinic that say adoption, not 01:05:21 17abortion? 01:05:23 18No. Planned Parenthood, when it comes to any 01:05:23 19 A.signage in the clinic, never talks about 01:05:29 20abortion. Signage in the clinic is always 01:05:34 21about good sexual health. 01:05:41 22When any abortions are performed in the three 01:05:45 23 Q.Planned Parenthoods that we have talked about 01:05:50 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
60today; is that right? 01:05:51 1Yes. 01:05:52 2 A.Do you have any idea how many? 01:05:52 3 Q.No. 01:05:53 4 A.Are you aware of any pro-life counsellors 01:05:54 5 Q.having talked any women out of an abortion? 01:05:58 6According to signs that they used to carry, 01:06:01 7 A.they used to say how many people, you know, 01:06:07 8that left the clinic. I really don't know how 01:06:11 9many ever did. 01:06:14 10Have you ever seen any women come into the 01:06:15 11 Q.clinic who came seeking an abortion who then 01:06:19 12left without having an abortion? 01:06:24 13Yes. 01:06:25 14 A.How many? 01:06:26 15 Q.I can't give you an exact number, but I know 01:06:26 16 A.that, you know, there have been times when 01:06:31 17women have decided that they didn't want to go 01:06:34 18through with the procedure and have left. 01:06:37 19Do you believe that Planned Parenthood 01:06:38 20 Q.officials or employees approve when pro-life 01:06:40 21counsellors talk a woman out of an abortion? 01:06:44 22I don't know what's in their mindset. 01:06:48 23 A.Have they ever told you? 01:06:48 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
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No. 01:06:50 1 A.Has anyone from Planned Parenthood ever 01:06:51 2 Q.instructed you and your security officers to 01:06:55 3keep pro-lifers away from clinic patrons? 01:06:58 4No. 01:07:02 5 A.We touched upon this earlier a little bit with 01:07:02 6 Q.respect to clinic escorts, and I'm talking 01:07:12 7about those who wear the Planned Parenthood 01:07:14 8escort vest, blue vest?01:07:14 9Yes.01:07:14 10 A.Have you seen that? 01:07:17 11 Q.Yes. 01:07:17 12 A.Have you seen that in the last three and a 01:07:18 13 Q.half years? 01:07:21 14The blue vests?01:07:22 15 A.Yes. 01:07:23 16 Q.Yes.01:07:23 17 A.When did you usually see these folks in blue 01:07:23 18 Q.vests? 01:07:27 19On Saturdays only. 01:07:27 20 A.And this is where? 01:07:28 21 Q.In Boston. 01:07:29 22 A.And what do you see them do? 01:07:30 23 Q.They're just outside of the clinic kind of 01:07:31 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
62
just moving around outside the buffer zone 01:07:36 1making sure that people can get through 01:07:40 2without being stopped.01:07:43 3How are they making sure people can get 01:07:44 4 Q.through? 01:07:49 5If a patient is outside the zone, and they are 01:07:49 6 A.stopped outside the zone or somebody is 01:07:58 7attempting to stop them outside of the zone, 01:08:00 8they will help lead them into the buffer zone 01:08:05 9where they could get into the clinic. 01:08:08 10So, they attempt to lead potential patrons 01:08:11 11 Q.away from the pro-life counsellors; is that 01:08:17 12right? 01:08:18 13What they do is if they see that a patient is 01:08:18 14 A.having trouble getting through to the buffer 01:08:21 15zone, they will go over and assist them to get 01:08:24 16into the buffer zone. 01:08:29 17What does that mean, having trouble getting 01:08:30 18 Q.through the buffer zone or to the buffer zone? 01:08:35 19If somebody gets in front of them trying to 01:08:36 20 A.hand leaflets, rosary beads, talk to them 01:08:42 21about their speech, and they can see that a 01:08:47 22person isn't able to get into the buffer zone 01:08:57 23area, because now they may have another person 01:09:03 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
63
on the other side of them trying to hold them 01:09:07 1up, the escort will help lead them by the arm 01:09:10 2into the buffer zone if that's where they want 01:09:14 3to go? 01:09:15 4What do you mean they'll hold them up? 01:09:16 5 Q.Keep them from getting inside the buffer zone. 01:09:17 6 A.By talking to them; is that right? 01:09:20 7 Q.No. Talking to them and stopping them and, 01:09:22 8 A.you know, not allowing forward motion. 01:09:25 9This is on Saturdays? 01:09:28 10 Q.Yes. 01:09:29 11 A.And the police are there on Saturdays; is that 01:09:30 12 Q.right? 01:09:33 13There's a police officer there until about 01:09:33 14 A.9:30. 01:09:36 15Is it a job of the police officer to make sure 01:09:37 16 Q.that nobody is obstructed from going into the 01:09:39 17clinic? 01:09:43 18Boston Police are there to make sure that 01:09:43 19 A.there is no physical abuse, physical of 01:09:46 20touching, of holding. That's what they're 01:09:51 21there for. They're not there to stop some -- 01:09:56 22you know, to get in between a pro-life person 01:09:59 23speaking to someone who may be coming into the 01:10:04 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
64
clinic. 01:10:07 1If I understand your testimony, you're saying 01:10:07 2 Q.that the police are there to make sure that 01:10:09 3nobody violates the law; is that right? 01:10:10 4Yes. 01:10:13 5 A.Would you say that as a security officer, that 01:10:13 6 Q.your goal is to get a patron of Planned 01:10:26 7Parenthood inside the facility as quickly as 01:10:31 8possible? 01:10:33 9No, we don't usher people into the clinic. We 01:10:33 10 A.are on the inside of the clinic making sure 01:10:39 11that the people coming in are safe, making 01:10:41 12sure that nothing comes, any kind of 01:10:44 13contraband comes into the building. 01:10:46 14If you're inside the clinic, how can you 01:10:48 15 Q.observe people on the outside? 01:10:52 16Cameras and windows, we have a window that 01:10:53 17 A.faces the entryway to the door. 01:10:56 18So, your attention is either directed at the 01:10:58 19 Q.camera, outside the window, or perhaps to the 01:11:02 20people outside the clinic; right? 01:11:05 21Once they get through our section of the lobby 01:11:07 22 A.of the clinic, they're inside the clinic 01:11:11 23itself, and we know at that point that they're 01:11:15 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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65safe. 01:11:17 1It's fair to say that you're not always 01:11:17 2 Q.watching what's going on outside on the 01:11:20 3sidewalk; isn't it?01:11:23 4If I'm there, I'm watching. 01:11:23 5 A.Don't you have other duties inside the clinic? 01:11:26 6 Q.My duty when I'm there on a Saturday is to 01:11:29 7 A.make sure that things are quiet and calm and 01:11:32 8the people that come in can get in without 01:11:36 9hassle and that they're coming in without 01:11:39 10anything that may cause a disruption inside 01:11:41 11the clinic itself. 01:11:43 12Can you watch the camera, look out the window, 01:11:45 13 Q.and also take care of the metal detector all 01:11:49 14at the same time?01:11:49 15I'm not my wife. I'm not multifaceted. I 01:11:55 16 A.have to do one thing at a time. If there are 01:12:00 17people coming into the clinic, I have to make 01:12:01 18sure that I check through their bags and their 01:12:04 19purse.01:12:07 20If you're doing that, you're not looking at 01:12:09 21 Q.the camera? 01:12:10 22That's correct. 01:12:11 23 A.Do you have any concern whether or not a 01:12:11 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
66pro-life advocate can effectively convey a 01:12:15 1message outside the clinic? 01:12:20 2Could you elaborate a little bit on that? 01:12:22 3 A.I'm talking about you personally as a security 01:12:25 4 Q.officer for Planned Parenthood. Are you 01:12:27 5concerned at all about whether or not a 01:12:29 6pro-life advocate can effectively convey a 01:12:32 7message to a patron coming into Planned 01:12:37 8Parenthood? 01:12:40 9I -- you know what? We go to, you know, I 01:12:40 10 A.believe in, you know, the free speech 01:12:44 11amendment, you know, and if they want to 01:12:48 12attempt to convey their message, you know, 01:12:51 13that's part of their amendment rights. If a 01:12:54 14person doesn't want to listen to them, that's 01:12:59 15part of their right to walk away. 01:13:02 16Let me put it this way. If you observed that 01:13:05 17 Q.a pro-life advocate was not being effective in 01:13:07 18conveying his or her message, would you do 01:13:11 19something to aid them? 01:13:16 20Go out and give them some speech reading and 01:13:16 21 A.some -- no, I wouldn't. 01:13:19 22You wouldn't give them that kind of assistance 01:13:20 23 Q.whatsoever? 01:13:23 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
67No. 01:13:23 1 A.It's not your job; is it? 01:13:23 2 Q.That's correct. 01:13:25 3 A.How often do you take pro-life literature away 01:13:26 4 Q.from women who come with it into the clinic? 01:13:41 5If I'm there working a shift, I probably take 01:13:45 6 A.three or four pieces of material away in the 01:13:54 7course of a shift, but they are looking to get 01:13:56 8rid of it. I'll say to them, you know, can I 01:14:04 9take that, you know, and they're already 01:14:08 10looking for a place to throw it, so I will 01:14:10 11take it from them and throw it in the bucket. 01:14:13 12If I recall your testimony earlier, you said 01:14:14 13 Q.that pro-life literature is not allowed inside 01:14:18 14the clinic? 01:14:20 15It's not in the clinic. It's in the entrance 01:14:20 16 A.vestibule, and that's where we take it away 01:14:23 17from them. We obviously can't get it outside 01:14:26 18the door. 01:14:28 19
But when they come in, you know, we will 01:14:29 20ask, you know, can we take that, because it 01:14:31 21can't be brought into the clinic, and people 01:14:35 22are very, you know, more than willing to give 01:14:38 23it to us. 01:14:41 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
68Do you customarily ask Planned Parenthood 01:14:41 1 Q.patrons how they prefer to be approached by 01:14:54 2pro-life counsellors? 01:14:57 3No. 01:14:58 4 A.Have you ever asked a patron how they prefer 01:14:59 5 Q.to be approached by pro-life counsellors? 01:15:02 6No. 01:15:02 7 A.And that's in a period of 15 years; is that 01:15:02 8 Q.right? 01:15:06 9Yes. 01:15:06 10 A.So, you don't know how patrons prefer to be 01:15:06 11 Q.approached by pro-life counsellors; is that 01:15:10 12right? 01:15:14 13I have no idea. 01:15:14 14 A.You do the hiring for your company; is that 01:15:15 15 Q.right? 01:15:18 16Yes. 01:15:18 17 A.Do you conduct interviews? 01:15:19 18 Q.Yes, I do.01:15:21 19 A.Do you conduct interviews over the phone? 01:15:21 20 Q.No. 01:15:22 21 A.Why not? 01:15:22 22 Q.It is my feeling that I want to see what a 01:15:24 23 A.person looks like. My first impression on a 01:15:30 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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69person is usually what my gut tells me. I 01:15:35 1start with the phone call, saying that they're 01:15:38 2interested in the position. 01:15:42 3
I make arrangements for them to come 01:15:44 4into my office for an interview, and my gut 01:15:47 5tells me when I see the person if I think 01:15:53 6they're going to be a match for me or not. 01:15:57 7And where do you actually conduct the 01:15:59 8 Q.interview? 01:16:02 9In my office. 01:16:02 10 A.And where are you sitting? 01:16:03 11 Q.I'm sitting at my desk. 01:16:05 12 A.Where is the interviewee sitting? 01:16:06 13 Q.In the chair right next to me. 01:16:08 14 A.How far away is he from you? 01:16:11 15 Q.A couple of feet maybe. 01:16:12 16 A.Do you ever interview any of your prospective 01:16:13 17 Q.employees from a distance of 20 feet away? 01:16:17 18No, because they want to speak to me. They're 01:16:19 19 A.looking for a job with me, so they want to be 01:16:24 20close. 01:16:30 21Is that the only reason? 01:16:30 22 Q.Yeah. 01:16:32 23 A.So, if an individual, perhaps an interviewee 01:16:36 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
70had some kind of a phobia and wanted to be 01:16:42 1interviewed from 30 feet away, you'd conduct 01:16:46 2the interview from that distance? 01:16:48 3If a person had a phobia of people and wanted 01:16:48 4 A.to be 30 feet away, I don't think that they 01:16:52 5would be a -- first of all, I don't think 01:16:54 6they'd be in my office to conduct the 01:16:56 7interview, and secondly, I think that would be 01:16:58 8a number one problem for me not to want to 01:16:59 9hire them, because people contact is a part of 01:17:03 10this business. 01:17:05 11When you have important matters to discuss and 01:17:06 12 Q.you want to discuss those matters in person, 01:17:10 13how far away do you stand from that 01:17:12 14individual? 01:17:15 15Usually, it's within arm's reach. 01:17:15 16 A.If you had something extremely important to 01:17:18 17 Q.say to somebody, would you want to conduct 01:17:22 18that from ten feet away? 01:17:24 19If I wanted to conduct that message and they 01:17:27 20 A.wanted to be there, we could be as close as we 01:17:38 21wanted to be. I've made my choice to discuss 01:17:41 22something with you, and you've made your 01:17:49 23choice to discuss it with me; therefore, 01:17:51 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
71there's no need for any boundaries, because we 01:17:53 1both made that decision. 01:17:58 2You and I are engaged in normal conversation; 01:17:58 3 Q.would you agree? 01:18:02 4Yes. 01:18:02 5 A.Voice levels are normal; is that fair? 01:18:02 6 Q.Yes. 01:18:05 7 A.We're about four or five feet apart; is that 01:18:06 8 Q.right?01:18:06 9Yes. 01:18:10 10 A.If I continue to talk to you at the same level 01:18:10 11 Q.and you were 90 feet away from me, could we 01:18:14 12have an effective conversation?01:18:15 13
MR. SALINGER: Are you asking the 01:18:20 14Witness to walk 90 feet away from you to test 01:18:21 15that or is this a hypothetical? 01:18:21 16
MR. DePRIMO: This is a hypothetical. 01:18:24 17If we were outside and we were this close 01:18:27 18 A.together, we could certainly hear one another. 01:18:30 19If you spoke in a voice that you're speaking 01:18:32 20to me right now outside, I don't care if we 01:18:36 21were this close together, you're probably not 01:18:41 22going to get my attention. 01:18:41 23Okay, fair enough. 01:18:43 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
72Last page, huh? Oh, he's got that look in his 01:18:55 1 A.eye. 01:19:06 2Can you sometimes tell whether or not a person 01:19:06 3 Q.is sincere by looking at their face? 01:19:09 4Absolutely. 01:19:12 5 A.Can you tell if they're sincere by looking in 01:19:13 6 Q.their eyes? 01:19:17 7Absolutely. 01:19:18 8 A.Can you tell if they're sincere by their 01:19:19 9 Q.mannerisms? 01:19:23 10Absolutely. 01:19:24 11 A.When somebody is conversing with you and might 01:19:24 12 Q.put their hand on your shoulder, is that an 01:19:29 13indication that they're trying to comfort you 01:19:32 14perhaps? 01:19:34 15For me personally, if somebody were to put 01:19:34 16 A.their hand on my shoulder in any type of a 01:19:34 17conversation, I might tend to back off a 01:19:39 18little bit, because I think you're too close 01:19:42 19into my space. 01:19:45 20Do you think some people might view a hand on 01:19:46 21 Q.a shoulder as a gesture of comfort? 01:19:50 22Yes. 01:19:51 23 A.A gesture of empathy? 01:19:52 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
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77THE WITNESS: I will send them 01:32:21 1
Express Mail. 01:32:23 2MR. DePRIMO: That will be fine. I'm 01:32:25 3
sure that Attorney Viator would appreciate a 01:32:29 4copy. Could you send a set to her as well?01:32:30 5
THE WITNESS: Yes. 01:32:33 6MR. DePRIMO: Okay, we're going to 01:32:36 7
have to leave the deposition open to the 01:32:37 8degree that any of the documents are 01:32:40 9responsive. Responsive documents need to be 01:32:42 10examined. 01:32:45 11
MR. SALINGER: And we'll just note 01:32:49 12that it's not obvious to us that the requested 01:32:51 13documents have any potential relevance to the 01:32:53 14lawsuit, so there's certainly no right to 01:32:56 15continue this deposition past today, 01:32:58 16especially in light of the limitations placed 01:33:00 17on the timing and length of the depositions by 01:33:02 18the court. So, you've made your statement, 01:33:05 19and we have made ours. 01:33:08 20
MR. DePRIMO: I would just like to 01:33:10 21put on the record that as soon as Defense 01:33:11 22Counsel advised me of the two witnesses they 01:33:13 23were going to produce for trial, that very day 01:33:17 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
78I asked you to set dates for deposition, and I 01:33:20 1believe that was on June 30, and the only time 01:33:23 2for the deposition was July 27.01:33:27 3
MR. SALINGER: No, we set today's 01:33:29 4date by agreement of Counsel on both sides, 01:33:32 5that's right. 01:33:35 6
MR. DePRIMO: As a professional 01:33:35 7courtesy on my part. Okay, I'll pass the 01:33:37 8Witness. 01:33:40 9
Mr. Baniukiewicz, I'm going to focus on the 01:33:51 12 Q.timeframe since November 13, 2007, when the 01:33:56 13new buffer zone law went into effect for my 01:34:00 14next series of questions. 01:34:05 15
You testified that you visit the Planned 01:34:08 16Parenthood clinic in Boston approximately two 01:34:11 17or three times a week; is that correct? 01:34:13 18Probably more like once or twice a week. 01:34:15 19 A.How do patients arrive at the Planned 01:34:18 20 Q.Parenthood clinic in Boston? 01:34:23 21Most arrive by car; some walk. That's their 01:34:24 22 A.main course of getting there. 01:34:35 23Do some patients take public transportation? 01:34:36 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
79I would think so, but I wouldn't see them get 01:34:41 1 A.off and on, because there's no stop in front 01:34:45 2of Comm. Ave. 01:34:49 3And where is the entrance to the clinic? 01:34:49 4 Q.The entrance to the clinic is in the front of 01:34:51 5 A.the building to the left of Alcorn Street, 01:34:53 6which is to the left of Stop and Shop. 01:34:57 7And so, how do patients get to that entrance? 01:35:00 8 Q.They walk down into the street and come into 01:35:04 9 A.the building either by the left side of the 01:35:09 10building or the right side of the building. 01:35:12 11So, they walk along Commonwealth Avenue 01:35:14 12 Q.sidewalk -- 01:35:18 13Yes.01:35:18 14 A.-- to get to the entrance; is that right? 01:35:18 15 Q.Yes. 01:35:21 16 A.I'd like you to take a look back at what was 01:35:22 17 Q.previously marked as Exhibit Number 2, and you 01:35:26 18recognize that this is Alcorn Street here on 01:35:38 19the right? 01:35:41 20Yes. 01:35:42 21 A.And where is the entrance to the clinic in 01:35:42 22 Q.this picture? 01:35:47 23If you see the grayish-lined area on the 01:35:48 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
80picture, that is the overhang to the entrance 01:35:55 1to the door. 01:36:00 2So, the entrance to the door isn't just below 01:36:01 3 Q.this picture; it's kind of to the left of the 01:36:07 4center; is that right? 01:36:09 5Yes. 01:36:10 6 A.And in this picture, you see a street sign on 01:36:10 7 Q.the left side in the center; do you see that, 01:36:17 8right by where the gentleman in the blue is 01:36:24 9standing? 01:36:28 10Yes. 01:36:28 11 A.And there is a space there that is outside of 01:36:28 12 Q.the buffer zone where the man in the tan 01:36:33 13jacket is standing; right? 01:36:36 14Yes. 01:36:37 15 A.Where is that space relative to the entrance 01:36:38 16 Q.of the door? 01:36:42 17That space is directly in front of the 01:36:43 18 A.entrance to the door. 01:36:47 19And have you observed people standing in that 01:36:48 20 Q.space? 01:36:51 21Absolutely. 01:36:52 22 A.What have you observed people doing there? 01:36:53 23 Q.They will wait there for a car to stop. They 01:36:56 24 A.
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81will start talking to the person inside the 01:37:01 1vehicle through the window. 01:37:05 2More generally, not just about that spot in 01:37:10 3 Q.particular, what types of pro-life activities 01:37:16 4have you observed people engage in outside of 01:37:19 5the Boston Planned Parenthood clinic? 01:37:22 6They hold what I call prayer vigils where they 01:37:25 7 A.say the rosary. They do sing. They have 01:37:31 8signs tied to say the post. If you look to 01:37:34 9the right of the picture we're looking at, you 01:37:43 10called it Exhibit Number 2, there is a side 01:37:46 11that there are three people standing, and 01:37:50 12there's a red sign leaning up against the 01:37:53 13post. That is one of the pro-life signs. 01:37:56 14
We also have normal or usually the 01:38:01 15vehicle, the gray vehicle that you see parked 01:38:06 16right by that sign, that's usually taken by 01:38:09 17one of the pro-life people's vehicles, and 01:38:14 18they put signs on the vehicle. 01:38:17 19
To the left of the picture where the 01:38:24 20gentleman in the blue is standing with the 01:38:29 21post, there is another area that they have 01:38:31 22signs on some of the DPW I believe, they lean 01:38:34 23one on, excuse me, the fire hydrant, and then 01:38:39 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
82outside the area right across from East 01:38:47 1Mountain Sports, or no, it's T-Mobile now, 01:38:52 2they usually have another car parked that they 01:38:54 3put signs on. 01:38:59 4And the T-Mobile is if you are facing the 01:38:59 5 Q.clinic door with your back to Commonwealth 01:39:03 6Ave., T-Mobile is to the right? 01:39:08 7To the right, yes. 01:39:10 8 A.How often do you see people holding signs? 01:39:10 9 Q.Every day. 01:39:13 10 A.How many signs do you see on a typical day? 01:39:14 11 Q.It can vary. We have probably four or five, 01:39:18 12 A.six signs on a daily basis, maybe more. 01:39:24 13Can you read these signs? 01:39:27 14 Q.Yes. 01:39:29 15 A.From where can you read these signs? 01:39:30 16 Q.You can read them from just about anywhere on 01:39:33 17 A.the street within the buffer zone area. 01:39:37 18If you are standing at the front door of the 01:39:38 19 Q.clinic, can you see signs? 01:39:43 20Yes. 01:39:46 21 A.And can you read what they say from that front 01:39:47 22 Q.door? 01:39:51 23Yes. 01:39:52 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
83Do people seem to notice these signs? 01:39:52 1 Q.I think everybody notices them. Some of them 01:39:57 2 A.are such that you can't help but notice. 01:40:00 3Have you ever observed people respond to these 01:40:03 4 Q.signs? 01:40:08 5Just to look at them, I've heard people coming 01:40:09 6 A.in, you know, that have made comments that I 01:40:13 7can't remember exactly what the comment was, 01:40:16 8but we specifically, if I can continue?01:40:18 9Yes.01:40:18 10 Q.We specifically have one sign that was always 01:40:23 11 A.out there of a fetus, and it's really a very 01:40:26 12horrific picture, and that's the one that most 01:40:34 13people see all the time, and they just can't 01:40:37 14believe that it's out there. 01:40:41 15And so, people would comment to you when they 01:40:43 16 Q.came in the door on that sign? 01:40:47 17Yes. 01:40:48 18 A.You mentioned that you've seen people praying 01:40:49 19 Q.and singing?01:40:49 20Yes.01:40:49 21 A.Where have you seen them pray and sing? 01:40:54 22 Q.Well, if we're looking once again at what we 01:40:57 23 A.call Exhibit Number 2, if you're standing with 01:41:01 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
84Commonwealth Ave. at your back to the left, at 01:41:04 1the other side of the buffer zone, they would 01:41:08 2tend to kneel or stand over there, and they 01:41:12 3would say the rosary -- oh, no, she can't see 01:41:17 4that. 01:41:20 5I'd like to refer you what was previously 01:41:30 6 Q.marked as Zarrella Exhibit 12. Maybe this 01:41:36 7will help describe the area you're talking 01:41:41 8about. 01:41:44 9
(Shown to the Witness.) 01:41:48 10Yes, that's it. Right at the peak, the turn 01:41:48 11 A.of the buffer zone, just on the other side of 01:41:56 12the buffer zone, not inside the buffer zone, 01:42:00 13right where the open area is off the street to 01:42:04 14come through into the clinic. 01:42:09 15So, you're referring to the area where in this 01:42:12 16 Q.photograph in the upper left-hand side the 01:42:17 17baby casket is down to the edge of the 01:42:19 18photograph to the left; is that right? 01:42:22 19Yes, that's correct. 01:42:24 20 A.In this photograph, there are some blue saw 01:42:25 21 Q.horses out; do you see that? 01:42:29 22Yes. 01:42:31 23 A.Is that what you were referencing earlier when 01:42:31 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
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85you mentioned barriers that the Boston Police 01:42:36 1Department put up? 01:42:39 2Yes, on the second Tuesday -- I don't know why 01:42:40 3 A.I say Tuesday. On the second Saturday of the 01:42:43 4month, we have quite a few people that are 01:42:46 5there to protest, and the Boston Police put up 01:42:50 6barriers to keep people inside of the barrier 01:42:55 7and not out in the middle of the street. 01:42:58 8And why are those barriers there? 01:43:01 9 Q.For the protection of the people. 01:43:05 10 A.And does it protect them? 01:43:10 11 Q.If they're willing to stay inside of it. We 01:43:13 12 A.can see from this picture that we have 01:43:18 13somebody who's standing on the other side of 01:43:21 14the barrier. 01:43:23 15But the barrier is there to protect them from 01:43:24 16 Q.the traffic on Commonwealth Ave.; is that 01:43:27 17right? 01:43:29 18Yes. 01:43:29 19 A.You also mentioned I believe that you've 01:43:30 20 Q.observed people calling out to those entering 01:43:33 21the clinic; is that right? 01:43:37 22Yes. 01:43:38 23 A.And how often do you observe that? 01:43:39 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
86That happens quite often. Anybody who looks 01:43:41 1 A.to go into the clinic, people will be calling, 01:43:45 2you know, come on over here, can I talk to 01:43:51 3you, come on over here, I need to talk to you. 01:43:54 4And where are people standing when they call 01:43:58 5 Q.out to them? 01:44:01 6Around the outside barrier, around the outside 01:44:02 7 A.of the buffer zone. 01:44:05 8And can you hear these women? 01:44:06 9 Q.I can hear -- 01:44:09 10 A.Excuse me. Can you hear the people calling 01:44:10 11 Q.out to the women? 01:44:13 12Yes, you can. 01:44:13 13 A.From where can you hear them? 01:44:14 14 Q.Normally, when I'm working there, I'm on the 01:44:17 15 A.inside behind the window, and I can hear them 01:44:22 16from there, so I can hear them inside the 01:44:26 17building. 01:44:29 18And do you on occasion step outside the front 01:44:29 19 Q.door? 01:44:34 20We do if we absolutely have to. 01:44:34 21 A.And have you on occasion heard people calling 01:44:44 22 Q.out when you were standing at the front door? 01:44:48 23Yes. 01:44:51 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
87And are you able to hear people pray? 01:44:51 1 Q.Yes. 01:44:56 2 A.And from where can you hear them pray? 01:44:56 3 Q.From inside the building. 01:45:01 4 A.Have you ever observed someone coming into the 01:45:02 5 Q.clinic have a conversation with one of these 01:45:07 6people calling out to them? 01:45:11 7Most of them are brief, because they get 01:45:12 8 A.stopped on their way inside the clinic. 01:45:17 9They'll listen for as quick of a listen as 01:45:22 10they can. 01:45:27 11
If they're given something, they'll take 01:45:29 12it just so they can get away and get inside. 01:45:32 13At the point that I see people talking to 01:45:36 14them, they just want to get by, so they will 01:45:39 15do whatever they have to do to get by. 01:45:43 16How often have you seen people coming into the 01:45:46 17 Q.clinic take literature? 01:45:50 18You know, I can't count how many times, but, 01:45:52 19 A.you know, you'll pick up three or four pieces 01:45:56 20of literature that you'll say to the client, 01:45:59 21no, you can't bring that in, and they'll hand 01:46:02 22it over to you, and we will dispose of it. 01:46:07 23So, three or four times a day -- 01:46:10 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
88Yes. 01:46:12 1 A.-- a patient walks into the clinic with the 01:46:13 2 Q.literature --01:46:16 3Yes. 01:46:17 4 A.-- in Boston? 01:46:17 5 Q.Yes. 01:46:18 6 A.Have you ever observed someone who was coming 01:46:18 7 Q.to the clinic talk with the people outside the 01:46:22 8clinic, and then ultimately not enter into 01:46:26 9Planned Parenthood? 01:46:30 10I can't really say. I've never seen anybody 01:46:31 11 A.not come into the clinic. If a decision is 01:46:38 12made that somebody is not going to go through 01:46:43 13with a procedure, they usually make that 01:46:46 14decision on the inside of the clinic, not on 01:46:50 15the outside. 01:46:52 16Have you ever seen women refuse to take the 01:46:53 17 Q.literature that people try to hand them?01:47:00 18Absolutely. 01:47:03 19 A.And what do they do? 01:47:03 20 Q.They just push their hands away and try to 01:47:05 21 A.walk through to get into the building. 01:47:10 22Have you ever seen anyone use or heard anyone 01:47:12 23 Q.use an amplifier or a microphone outside the 01:47:15 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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89Boston clinic? 01:47:21 1Yes. 01:47:22 2 A.When was that; was that on a regular basis? 01:47:22 3 Q.It doesn't happen that much anymore. It 01:47:25 4 A.happened quite a bit just at the beginning of 01:47:30 5the buffer zone. It's phased itself out since 01:47:33 6then. 01:47:40 7Are there any other types of pro-life 01:47:40 8 Q.activities outside the Boston clinic you can 01:47:44 9think of that we haven't discussed that you 01:47:46 10have observed? 01:47:50 11I do know they take pictures of the cars 01:47:50 12 A.stopping and coming in. 01:47:56 13Who does that? 01:48:01 14 Q.Excuse me? 01:48:02 15 A.Who does that? 01:48:03 16 Q.The pro-life people. On the other side of the 01:48:04 17 A.building where the garage area is, when we 01:48:11 18used to allow patients to park in the garage, 01:48:15 19we had two young ladies who would take still 01:48:19 20pictures plus movies of the cars coming in or 01:48:27 21out of the building. 01:48:31 22Do patients still park in that garage? 01:48:32 23 Q.No, they don't. 01:48:33 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
90So, all patients must come in the front door? 01:48:35 1 Q.Through the front door, yes. 01:48:36 2 A.Let's move on to focus on the Worcester 01:48:38 3 Q.clinic. When did that clinic open in its 01:48:46 4current location? 01:48:50 52009, I believe it was November of 2009. 01:48:51 6 A.So, for my next questions, we're going to talk 01:48:55 7 Q.about just the Worcester since it opened in 01:49:02 8its current location on Pleasant Street. How 01:49:06 9do patients arrive at that clinic? 01:49:09 10Patients come through the Dewey Street vehicle 01:49:11 11 A.entrance. 01:49:18 12And is that a parking lot? 01:49:21 13 Q.Yes. 01:49:24 14 A.Can you describe the parking lot to me? 01:49:25 15 Q.Yes. The parking lot is a left/right turn 01:49:27 16 A.into the lot. It's probably 100 feet of 01:49:38 17straightaway, then a left turn that leads to a 01:49:44 18small turnaround.01:49:50 19
MS. VIATOR: Could you mark this as 01:49:50 20Exhibit 4, please. 01:50:30 21
Would you please look at that photograph and 01:50:31 24 Q.DEPOSITION OF MICHAEL BANIUKIEWICZ
91let me know if you recognize it? 01:50:35 1
(Shown to the Witness.) 01:50:38 2Yes, I do. 01:50:38 3 A.What does it show? 01:50:39 4 Q.It's an aerial photo of the parking lot area 01:50:41 5 A.and Planned Parenthood. 01:50:45 6Where in this photograph is the Planned 01:50:46 7 Q.Parenthood building? 01:50:51 8The Planned Parenthood building is the center 01:50:51 9 A.building that shows a white roof with three 01:50:57 10objects on top. 01:51:02 11Is that the parallelogram-shaped building? 01:51:03 12 Q.That's it. 01:51:09 13 A.
MR. DePRIMO: May I make a 01:51:10 14suggestion? You can ask him to mark on the 01:51:11 15exhibit to identify it if you want to clarify 01:51:14 16it to make it easier. 01:51:16 17
MS. VIATOR: Certainly. 01:51:19 18Could you take your pen and mark with an X the 01:51:19 19 Q.Planned Parenthood building? 01:51:24 20Sure. (Witness complies.) 01:51:24 21 A.
MR. DePRIMO: Let the record show 01:51:25 22he's writing Planned Parenthood on the 01:51:27 23building, not an X. 01:51:30 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
92MS. VIATOR: Thank you. 01:51:32 1
And across the top of the photograph, that's 01:51:32 2 Q.Pleasant Street; right? 01:51:38 3Yes. 01:51:38 4 A.And Dewey Street is the street coming down the 01:51:39 5 Q.other side on the left; right? 01:51:42 6That's correct. 01:51:44 7 A.So, where is the entrance to the parking lot 01:51:44 8 Q.you were talking about? 01:51:50 9The entryway is once again right/left off of 01:51:51 10 A.Dewey Street. There is a white-roofed 01:51:59 11building that runs parallel to the drive. The 01:52:01 12building that I know of is Serrato Signs, 01:52:06 13which is to the right. There's a little 01:52:10 14corner shot of a building, but that's the 01:52:14 15entryway into the parking lot. 01:52:18 16And what types of pro-life activities have you 01:52:20 17 Q.observed at the Worcester Planned Parenthood 01:52:27 18clinic? 01:52:30 19The activities are, you know, about the same 01:52:30 20 A.everywhere. We have people outside trying to 01:52:41 21hand out information. We have some signs. We 01:52:44 22have the gentleman that we call the grim 01:52:52 23reaper who usually walks up and down Pleasant 01:52:54 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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93Street. He doesn't talk. He doesn't hand 01:52:58 1anything out. 01:53:01 2
He just walks back and forth. We had a 01:53:02 3major situation one day that really caused a 01:53:07 4block of traffic. A school had dropped off a 01:53:11 5busload of children to protest. 01:53:15 6And what did the children do? 01:53:18 7 Q.They basically walked around the buffer zone 01:53:20 8 A.area in the front of the Planned Parenthood. 01:53:25 9They had songs that they were singing.01:53:29 10Could you hear them singing? 01:53:33 11 Q.I could, because I was outside. 01:53:35 12 A.And where were you standing? 01:53:37 13 Q.I was actually in the parking lot. There is a 01:53:39 14 A.red vehicle parked in this picture, and I was 01:53:43 15probably one, two, three, four, about five to 01:53:49 16six parking spaces down towards the center of 01:53:53 17the parking lot just before the turn. 01:53:59 18And that's the parking lot where patients park 01:54:03 19 Q.when they're headed into the clinic? 01:54:06 20Yes. 01:54:09 21 A.And you could hear the children singing?01:54:09 22 Q.They could hear inside, too. I know that.01:54:13 23 A.You said that you've seen people hold signs. 01:54:17 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
94Where outside of the Worcester clinic have you 01:54:20 1seen people hold signs? 01:54:23 2The area on the left or directly across the 01:54:25 3 A.street from the Planned Parenthood parking lot 01:54:29 4is an empty lot. It used to be CVS, and they 01:54:35 5tend to stand in that area. I'm just marking 01:54:41 6CVS on this picture. 01:54:46 7And the protesters stand in that area where 01:54:49 8 Q.you've marked CVS? 01:54:52 9Yes. 01:54:55 10 A.Is there anywhere else that you've seen them? 01:54:55 11 Q.You know, we've had a few people out on the 01:54:58 12 A.street on the Pleasant Street side, but most 01:55:04 13of the activity is inside of the Dewey Street 01:55:07 14area where the entrance is. 01:55:10 15Can you read the signs that people have? 01:55:11 16 Q.Yes. 01:55:14 17 A.From where can you read them? 01:55:14 18 Q.20, 30 feet away maybe. 01:55:16 19 A.If you are driving in your car to the clinic 01:55:21 20 Q.and you're turning from Dewey Street into the 01:55:24 21parking lot of Planned Parenthood, can you 01:55:29 22read the signs then? 01:55:31 23Yes. 01:55:32 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
95And if you park in the parking lot of Planned 01:55:33 1 Q.Parenthood where you indicated before to the 01:55:39 2right of this red car in the lower portion of 01:55:42 3the photograph, if you park in that parking 01:55:47 4lot, can you read the signs? 01:55:50 5Yes, if you have 20/20, you can read them. 01:55:51 6 A.
MR. DePRIMO: Can I just ask a 01:55:56 7question to clarify? Which parking lot are 01:55:58 8you talking about, the Planned Parenthood 01:56:02 9parking lot? 01:56:03 10
MS. VIATOR: Yes. 01:56:04 11MR. DePRIMO: It's kind of an 01:56:05 12
L-shaped, so where in the parking lot are you 01:56:06 13asking him? 01:56:08 14
MS. VIATOR: In the area where he 01:56:08 15testified a moment ago that he parked to the 01:56:10 16right of the red car in the lower portion of 01:56:14 17the photograph. 01:56:17 18Have you seen people hand out literature? 01:56:17 19 Q.Yes. 01:56:20 20 A.How often do you see that? 01:56:21 21 Q.Whenever somebody is willing to open up their 01:56:22 22 A.door or their window to accept it. 01:56:28 23And how often do you personally observe that 01:56:30 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
96happen? 01:56:34 1When I'm there, you know, you probably see it 01:56:35 2 A.a few times, and once again I don't want to be 01:56:40 3specific, because I don't want to be wrong. 01:56:45 4You said you're at the Worcester clinic was 01:56:47 5 Q.that two or three times a week? 01:56:51 6Probably two times a week. 01:56:52 7 A.And how long do you usually stay when you're 01:56:55 8 Q.there? 01:56:58 9A half an hour. 01:56:58 10 A.How often do patients bring literature into 01:56:59 11 Q.the Worcester clinic? 01:57:04 12You probably see it, you know, three or four 01:57:06 13 A.times. 01:57:08 14Three or four times a day? 01:57:10 15 Q.During the AB days or during procedural days 01:57:11 16 A.is when you'd see it. 01:57:21 17And what days are those, if you know? 01:57:22 18 Q.Thursday, Friday, Saturday. 01:57:25 19 A.You mentioned that people call out to women at 01:57:28 20 Q.this clinic; do you agree? 01:57:36 21Yes. 01:57:38 22 A.From where have you seen and heard people call 01:57:38 23 Q.out to people at that clinic? 01:57:43 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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Usually, once again, they're on Dewey Street 01:57:45 1 A.outside of the buffer zone. 01:57:49 2Anywhere else? 01:57:50 3 Q.Very rarely on Pleasant Street. They know 01:57:52 4 A.that, you know, the majority of people are 01:58:02 5coming through use the Dewey Street entrance, 01:58:06 6so most people stay there. We do have a few 01:58:09 7stragglers that stay on Pleasant Street. 01:58:14 8And do patients sometimes enter through 01:58:15 9 Q.Pleasant Street? 01:58:18 10Very, very rarely, because that's now not 01:58:19 11 A.really an entrance. As I stated before, 01:58:24 12that's more for emergency vehicles. 01:58:26 13There's a bus stop across Pleasant Street; 01:58:30 14 Q.right? 01:58:33 15Yes. 01:58:33 16 A.And do patients ever arrive by bus in your 01:58:34 17 Q.observation? 01:58:38 18That I have no idea. 01:58:39 19 A.Have you ever observed people having a 01:58:40 20 Q.conversation with women entering the clinic 01:58:49 21outside of Worcester? 01:58:53 22If they stop and they can engage them in 01:58:55 23 A.conversation, you know, it may just be for a 01:59:00 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
98
minute or two, but there's never any long 01:59:04 1conversations. 01:59:07 2And when people call out to the people 01:59:07 3 Q.entering the clinic, in your observation, do 01:59:12 4people seem to notice them? 01:59:15 5Yes. 01:59:17 6 A.How do you know that? 01:59:18 7 Q.You'll see them turn. You really can't help 01:59:19 8 A.but miss somebody standing on the corner of 01:59:27 9the street talking to the person inside the 01:59:30 10car coming in. 01:59:34 11You mentioned the grim reaper. How often is 01:59:35 12 Q.he outside the clinic? 01:59:41 13He's definitely there on Saturdays. I really 01:59:43 14 A.can't give you, you know, specifically how 01:59:49 15many times a week he's there. 01:59:52 16Are there any other types of activities that 01:59:54 17 Q.you've observed people engage in outside of 01:59:57 18the Worcester clinic? 02:00:03 19Not really, we did have quite a bit of problem 02:00:04 20 A.in getting the buffer zone lines in, so at the 02:00:11 21time that they weren't there, it was a free 02:00:15 22for all. But now that they're in, it stays 02:00:19 23pretty much. 02:00:24 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
99
You mentioned that most of the protesters you 02:00:26 1 Q.observed are on Dewey Street; is that right? 02:00:32 2Yes. 02:00:35 3 A.And they're generally on the CVS side that's 02:00:35 4 Q.across from the entrance to the lot; is that 02:00:40 5right? 02:00:43 6Yes. 02:00:43 7 A.Do they sometimes stand on the same side of 02:00:44 8 Q.the street? 02:00:47 9Yes, they have stood on the other side, on the 02:00:47 10 A.Planned Parenthood side, and depending on what 02:00:51 11the owners of Serrato Sign may want to say to 02:00:54 12get them out of their driveway. 02:01:00 13And are there any other types of activities 02:01:01 14 Q.you observe people engage in outside this 02:01:06 15clinic? 02:01:09 16I think we got that one. 02:01:10 17 A.Covered it?02:01:13 18 Q.We beat it. 02:01:14 19 A.Have you ever observed anyone using a 02:01:15 20 Q.microphone or an amplifier out of the 02:01:19 21Worcester clinic? 02:01:22 22Not in the Worcester clinic, no. 02:01:23 23 A.Let's move on to Springfield, and for the time 02:01:26 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
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being I'm talking about just the timeframe 02:01:30 1again since November 13, 2007, when the new 02:01:33 2buffer zone law went into effect. How often 02:01:38 3do you visit the Springfield Planned 02:01:43 4Parenthood site? 02:01:45 5Probably once a week, it's a distance, so I 02:01:45 6 A.don't cover that as much, but the person that 02:01:53 7I have who works out there is extremely 02:01:56 8competent. 02:01:59 9When you say it's a distance, you mean it's a 02:02:01 10 Q.distance from your office? 02:02:05 11From my office to Springfield. I get lazy. 02:02:06 12 A.How do patients arrive at the Springfield 02:02:10 13 Q.Planned Parenthood clinic? 02:02:14 14They come into the driveway off to the side of 02:02:15 15 A.Planned Parenthood. I believe it's Wason Ave. 02:02:24 16I'm going to direct your attention to what was 02:02:28 17 Q.previously marked Exhibit 8. 02:02:36 18
MR. DePRIMO: At the deposition of? 02:02:45 19MS. VIATOR: That's a good question. 02:02:47 20
At the Deposition of Doctor Cyril Shea. 02:02:55 21MR. DePRIMO: Which one? 02:02:59 22MS. VIATOR: Exhibit 8 of Doctor Shea 02:03:01 23
in the Springfield deposition. 02:03:04 24DEPOSITION OF MICHAEL BANIUKIEWICZ
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101Do you know anything about the scene of this 02:03:05 1 Q.photograph? 02:03:14 2Yes. 02:03:14 3 A.What does it show? 02:03:14 4 Q.Planned Parenthood or the building that 02:03:15 5 A.Planned Parenthood occupies. 02:03:18 6Which building if you can describe it in the 02:03:19 7 Q.photo? 02:03:24 8It is the red brick building in the center of 02:03:24 9 A.the photograph just below to a white-roofed 02:03:27 10building and to the left of another 02:03:33 11white-roofed building. 02:03:36 12It's the building with this dark roof that 02:03:38 13 Q.appears to be a white stripe down the middle 02:03:41 14of it?02:03:45 15Yes.02:03:45 16 A.This is Wason Ave. that runs across the bottom 02:03:45 17 Q.of the photograph; is that right? 02:03:49 18Yes. 02:03:51 19 A.And Main Street runs up along the right side 02:03:51 20 Q.of the photograph? 02:03:55 21Yes. 02:03:55 22 A.In your observation, which entrance do people 02:03:56 23 Q.entering the clinic usually use? 02:04:00 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
102They usually enter the Wason Street entrance. 02:04:02 1 A.And where do they park? 02:04:07 2 Q.Anywhere inside of that parking area. 02:04:09 3 A.That kind of rectangular-shaped parking area? 02:04:12 4 Q.Yes. 02:04:16 5 A.What types of pro-life activities have you 02:04:17 6 Q.observed outside the Springfield clinic? 02:04:21 7Springfield, they tend to do the same, have 02:04:24 8 A.the same type of procedures as what the other 02:04:35 9two clinics do. There isn't as much signage, 02:04:41 10but there are signs. They tend to try to slow 02:04:45 11vehicles down going into the drive to try and 02:04:53 12get their message across. 02:05:00 13How do they try to slow vehicles down? 02:05:02 14 Q.Obviously, if they're walking, they can walk 02:05:06 15 A.so they're walking across the street. That's 02:05:13 16pretty much what you'd get walking from 02:05:17 17perpendicular to Wason Ave. 02:05:23 18So, they would cross Wason Ave? 02:05:24 19 Q.Yes. 02:05:28 20 A.Is that something you have observed anywhere 02:05:28 21 Q.else? 02:05:32 22On here. 02:05:32 23 A.And who does that? 02:05:34 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
103Usually, the pro-life people. 02:05:36 1 A.You said that you've seen people with signs. 02:05:40 2 Q.Where outside that Springfield clinic do you 02:05:45 3see people holding signs? 02:05:49 4They're mostly -- there are two entrances, but 02:05:51 5 A.they mostly congregate around the Wason Ave. 02:05:53 6entrance, because the other entrance, which is 02:05:58 7on Main Street, is really obscure to the 02:06:00 8building itself. 02:06:04 9So, the Main Street entrance that you're 02:06:05 10 Q.talking about, that's the entrance on the top 02:06:08 11right-hand side where the little red dot is; 02:06:12 12is that right? 02:06:15 13That's correct. 02:06:15 14 A.And so, patients sometimes use that entrance? 02:06:15 15 Q.Very rarely, they usually come into the -- 02:06:19 16 A.this is really, the Wason Ave. is really the 02:06:25 17Main Street into the Planned Parenthood 02:06:28 18building. 02:06:30 19The signs that you've seen on Wason Ave., 02:06:31 20 Q.where on Wason Ave. do they stand with the 02:06:35 21signs? 02:06:41 22They usually, you know, are outside of the 02:06:41 23 A.buffer zone area. 02:06:43 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
104Do they stand on the same side of the street 02:06:44 1 Q.of the clinic entrance or on the opposite side 02:06:48 2of the street? 02:06:52 3Mostly -- well, I shouldn't say mostly. They 02:06:53 4 A.probably use both the same side and the 02:06:55 5opposite side.02:06:58 6And do they stand on either side of the buffer 02:06:59 7 Q.zone, so if you're facing the entrance to 02:07:02 8either the left or the right of the zone? 02:07:05 9Yes. 02:07:08 10 A.Do you recall what any of their signs say? 02:07:08 11 Q.Not really. When I go over there, I really 02:07:14 12 A.try not to pay attention to them, because I 02:07:21 13know when I pull into the driveway, I'm just 02:07:24 14going to park and walk in. 02:07:27 15As you're pulling into the driveway, can you 02:07:29 16 Q.see the signs? 02:07:32 17Yes, you can. 02:07:33 18 A.And can you read them? 02:07:33 19 Q.Yes, you can. 02:07:35 20 A.When you park your car and get out of your 02:07:37 21 Q.car, can you see the signs? 02:07:41 22You can see the signs, once again if you're 02:07:42 23 A.20/20, and you can hear them, you know, 02:07:46 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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105calling to you also. 02:07:48 1And do they stand in the same locations when 02:07:50 2 Q.they're calling to people to either the right 02:07:53 3or the left of the buffer zone? 02:07:56 4Yes. 02:07:57 5 A.Can you hear them when you're turning into the 02:07:57 6 Q.parking lot? 02:08:02 7Yes. 02:08:03 8 A.And can you hear them when you park your car? 02:08:03 9 Q.Yes. 02:08:06 10 A.Are there any other types of activities you've 02:08:07 11 Q.observed outside this clinic? 02:08:14 12No. Springfield is -- because there is the 02:08:16 13 A.distance between the entryway and the door, 02:08:24 14their activities are pretty sedate. They can 02:08:29 15only do what they can do, you know, at the 02:08:33 16driveway entrance. 02:08:36 17The area from the driveway entrance where that 02:08:36 18 Q.green grass strip is, that whole parking lot, 02:08:41 19is that private property? 02:08:45 20That was my next comment, yes, that's all 02:08:47 21 A.private property.02:08:51 22And the area adjacent to Main Street from that 02:08:53 23 Q.driveway entrance, that whole parking lot, is 02:08:57 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
106that private property? 02:09:01 1It's private property, yes. 02:09:01 2 A.How often or do you ever see people bring 02:09:04 3 Q.literature into the Springfield Planned 02:09:09 4Parenthood clinic? 02:09:12 5Not that much, if any information gets into 02:09:13 6 A.the clinic, it's because it's mailed to the 02:09:21 7clinic. Usually, patients when they're coming 02:09:25 8in, have nothing. There is right underneath 02:09:29 9the walkway, there is a basket, and if they 02:09:33 10get anything, they put it in there. We don't 02:09:38 11really see much coming into the building. 02:09:41 12Where in the building is the Planned 02:09:43 13 Q.Parenthood office? 02:09:45 14It's upstairs. 02:09:45 15 A.It's on the second floor? 02:09:47 16 Q.Yes. 02:09:48 17 A.So, people enter into the lobby and come 02:09:48 18 Q.upstairs before they ever get to the Planned 02:09:51 19Parenthood office? 02:09:55 20Yes. 02:09:55 21 A.And there are trash cans in the lobby? 02:09:55 22 Q.Yes. 02:09:59 23 A.I'd like to now focus your timeframe before 02:09:59 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
107November of 2007, before the current buffer 02:10:05 1zone law went into effect. How, if at all, do 02:10:09 2the pro-life activities you observed outside 02:10:13 3of the Springfield clinic differ than what you 02:10:16 4just described? 02:10:20 5Well, they were less contained. They were 02:10:20 6 A.more liable to come into the property, attempt 02:10:23 7to go to the cars that people were coming in 02:10:31 8with, and it made really no difference. 02:10:34 9
It's a multifaceted medical building, so 02:10:37 10you may have people coming in, you know, to 02:10:42 11have their eyes examined, and they would be 02:10:45 12going to the cars to tell, you know, people 02:10:49 13that they kill babies in there. 02:10:51 14So, the people would walk on the private 02:10:55 15 Q.property --02:10:58 16Yes. 02:10:58 17 A.-- of the building? 02:10:59 18 Q.Yes. 02:11:00 19 A.Aside from their stepping onto the private 02:11:00 20 Q.property of the building, what if anything was 02:11:07 21different about the activities they engaged in 02:11:11 22on the public sidewalk? 02:11:15 23They would tend to block the driveway by 02:11:17 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
108walking back and forth in front of the 02:11:21 1entrance. 02:11:26 2
MS. VIATOR: One moment to check my 02:11:36 3notes. Okay, I think I'm done for the time 02:11:43 4being. 02:11:45 5
MR. DePRIMO: You pass the Witness? 02:11:46 6MS. VIATOR: Yes.02:11:48 7MR. DePRIMO: I have a few questions.02:11:48 8
REDIRECT EXAMINATION02:11:48 9(By Mr. DePrimo) 02:11:57 10
At the Boston clinic, 1055 Commonwealth 02:11:57 11 Q.Avenue, you testified that you had seen some 02:12:07 12people reach out and take literature from 02:12:10 13folks that were passing by on the sidewalk; is 02:12:14 14that correct?02:12:14 15Not too much reach out, but it was handed to 02:12:18 16 A.them, and they took it. 02:12:21 17Right. The pro-lifer was sort of standing 02:12:22 18 Q.near their path as they were walking -- 02:12:26 19They would hand it out. 02:12:28 20 A.-- they offered it, and the person sort of 02:12:29 21 Q.just picked it out of their hands; is that 02:12:32 22correct? 02:12:34 23That's correct. 02:12:34 24 A.
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109And sometimes you said that people who were 02:12:34 1 Q.walking along a path, and the pro-lifer was 02:12:38 2right next to them, they sometimes just push 02:12:42 3away their hands; is that correct? 02:12:43 4Yes. 02:12:45 5 A.Have you ever seen anybody who was walking 02:12:45 6 Q.from one side of the zone, for example, from 02:12:48 7the Star Market side; are you following me? 02:12:52 8Yes. 02:12:54 9 A.They're walking to Planned Parenthood from the 02:12:54 10 Q.Star Market side, if there was a pro-lifer on 02:12:58 11the very opposite side of the zone past the 02:13:00 12entrance, did you ever see anybody walk 02:13:03 13through the zone past the door to the other 02:13:07 14side of the zone to take literature that was 02:13:10 15offered? 02:13:13 16I've never seen a person that was inside the 02:13:14 17 A.zone going into the clinic specifically walk 02:13:18 18over to somebody to take any literature. 02:13:22 19We talked about the grim reaper earlier in 02:13:25 20 Q.your deposition. Is it fair to say the grim 02:13:33 21reaper represents death? 02:13:37 22He certainly doesn't represent life. He 02:13:38 23 A.represents death. 02:13:43 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
110With respect to the Worcester clinic, have you 02:13:43 1 Q.ever seen anybody go into the parking lot off 02:13:47 2of Dewey Street, park their car, and then walk 02:13:50 3back to the pro-lifers who are outside the 02:13:54 4zone on the Dewey Street side to take 02:13:58 5literature? 02:14:02 6No. 02:14:03 7 A.Have you ever seen anybody, a patron of 02:14:03 8 Q.Planned Parenthood, go into the driveway of 02:14:07 9the Planned Parenthood on Dewey Street, park 02:14:09 10their car, and then walk back to the 02:14:12 11pro-lifers on Dewey Street to engage in 02:14:17 12conversation? 02:14:18 13Not that I recall, no. I've seen some of the 02:14:19 14 A.pro-lifers pull their car into Planned 02:14:22 15Parenthood and park there and then go out in 02:14:24 16the street, but. 02:14:25 17I believe you testified that on occasion 02:14:27 18 Q.you've seen some pro-life advocates hand out 02:14:30 19literature to people in vehicles --02:14:36 20Yes.02:14:36 21 A.-- when people stopped their car and rolled 02:14:38 22 Q.down their window; is that correct? 02:14:41 23If they were pulling into the parking lot, say 02:14:42 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
111if you're making their right into the Dewey 02:14:47 1Street entrance, and there's somebody standing 02:14:52 2at the, right at the edge of the buffer zone, 02:14:55 3you know, they'll try to can I talk to you, 02:15:00 4can I talk to you, and if somebody should roll 02:15:04 5down their window to see what they want, you 02:15:08 6know, they'll try to hand them literature. 02:15:09 7How close would they be when they try to hand 02:15:12 8 Q.literature to somebody through a car window? 02:15:15 9Obviously, it's probably an arm's length away, 02:15:15 10 A.so they're just at that corner edge of the 02:15:17 11buffer zone. 02:15:22 12Directing your attention to Exhibit 4, that's 02:15:22 13 Q.the aerial photograph of Planned Parenthood in 02:15:30 14Worcester; correct? 02:15:33 15Yes. 02:15:34 16 A.Can you point to me where the emergency exit 02:15:34 17 Q.is along on Pleasant Street? 02:15:38 18There is a gated area right now around about 02:15:41 19 A.this the area right here (indicating). I 02:15:51 20don't know how to explain it to you, but I 02:15:53 21want to say it's someplace right in here. 02:15:55 22Would you mark that? I see that you've marked 02:16:00 23 Q.it on the exhibit sort of like a rectangular 02:16:00 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
112shape. Could you on the edge of that perhaps 02:16:09 1put an arrow and say emergency? 02:16:11 2(Witness complies.) 02:16:14 3 A.Now, is it your testimony that that particular 02:16:15 4 Q.area is a locked gate? 02:16:24 5I won't say that for absolute certainty, but 02:16:26 6 A.from what my knowledge is, it's a locked gate 02:16:32 7right now. 02:16:36 8Is it a closed gate at least? 02:16:36 9 Q.Yes. Well, you can walk around it. Once 02:16:38 10 A.again, you know, my mind is drawing a complete 02:16:42 11blank of it. I know there really isn't any 02:16:47 12entryway into the section. 02:16:54 13In fact, that's really a walkway; isn't it? 02:16:54 14 Q.Yes. 02:16:58 15 A.It's not meant for vehicles? 02:16:58 16 Q.It can be made to allow an emergency vehicle 02:17:01 17 A.to come in if it needs to. 02:17:05 18And how would the emergency vehicle come in? 02:17:09 19 Q.You would have to open the gates and pull the 02:17:11 20 A.center pipe out of the ground. 02:17:14 21So, those fences are movable; is that what 02:17:15 22 Q.you're saying? 02:17:20 23They were, okay. I'm not sure if we still 02:17:21 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
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113have them that way. I haven't checked them in 02:17:24 1the past few weeks. They made some changes to 02:17:28 2that section of the building. 02:17:32 3Let me see if I can describe to you my 02:17:33 4 Q.understanding of that fence, and then perhaps 02:17:37 5you can correct me. 02:17:37 6
My understanding is we have a fairly 02:17:40 7long metal fence that's a certain distance 02:17:43 8outside, for purposes of your deposition, 40 02:17:49 9feet from the entrance to the clinic. Then 02:17:50 10there's a second metal fence that's six or so 02:17:53 11feet away from that about 46 feet from the 02:17:58 12entrance that runs the rest of the length. 02:18:02 13Are you following me? 02:18:05 14Yes. 02:18:06 15 A.Does that sound about right? 02:18:07 16 Q.It sounds about right. 02:18:09 17 A.So, if somebody wanted to walk through that 02:18:09 18 Q.entrance from Pleasant Street, you'd walk up a 02:18:13 19walkway from the curb, go past the first 02:18:17 20fence, take a right; correct? 02:18:20 21Yes. 02:18:20 22 A.And then go around the second fence; is that 02:18:21 23 Q.right? 02:18:24 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
114Yes. 02:18:24 1 A.Is it your testimony that that area is large 02:18:24 2 Q.enough for a vehicle to go through? 02:18:29 3As to my recollection, when it was actually 02:18:30 4 A.built, it was set, as I said, to be used for 02:18:38 5emergency vehicles. 02:18:42 6But it's not used ever for patrons simply to 02:18:43 7 Q.access Planned Parenthood? 02:18:50 8No. 02:18:51 9 A.I believe you said earlier, correct me if I'm 02:18:51 10 Q.wrong, that at Worcester sometimes the 02:18:56 11pro-lifers call out and people respond; is 02:18:59 12that correct? 02:19:03 13They call out, and people notice them, yes. 02:19:03 14 A.People notice them. How do they notice them? 02:19:07 15 Q.A turn of their heads.02:19:09 16 A.What else do they do? 02:19:12 17 Q.Depending on the person, they may yell some 02:19:14 18 A.expletives back at them. 02:19:20 19It's a hard word for me, too. 02:19:25 20 Q.They are noticed. You know, they are noticed. 02:19:28 21 A.Have you ever seen anybody pull into the 02:19:34 22 Q.parking lot from the Dewey Street exit and 02:19:39 23then approach the entrance to Planned 02:19:42 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
115Parenthood, right; are you following me? 02:19:46 1Yes. 02:19:49 2 A.And then perhaps hear somebody who's calling 02:19:49 3 Q.from the Pleasant Street side of the buffer 02:19:54 4zone; do you follow me? Have you ever seen 02:19:57 5anybody --02:20:01 6Come in from Dewey Street, enter the building, 02:20:01 7 A.and hear something from the other side, and go 02:20:07 8over to the side?02:20:08 9And then walk over to the other side of 02:20:08 10 Q.Pleasant Street? 02:20:13 11No. 02:20:13 12 A.Never? 02:20:13 13 Q.No. 02:20:14 14 A.Let's look at Deposition Exhibit 5. Is that 02:20:14 15 Q.the map of the Springfield Planned Parenthood; 02:20:31 16am I right? 02:20:34 17
(Shown to the Witness.) 02:20:37 18MS. VIATOR: No, I think that's 02:20:37 19
Exhibit 8 to Doctor Shea's deposition.02:20:40 20MR. DePRIMO: Exhibit 8 to 02:20:44 21
Doctor Shea's deposition, I wasn't sure if you 02:20:46 22marked it for this one as well. 02:20:46 23Okay, looking at that, when was the last time 02:20:47 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
116that you visited Planned Parenthood in 02:20:51 1Springfield? 02:20:53 2It was a few weeks ago. 02:20:53 3 A.When you go to visit Planned Parenthood, how 02:20:55 4 Q.do you get to the Planned Parenthood facility? 02:20:59 5Mass. Pike. 02:21:01 6 A.Okay. As you're coming down Main Street and 02:21:05 7 Q.you see -- by the way, is it fair to call the 02:21:09 8area that Planned Parenthood is located in a 02:21:13 9medical complex? 02:21:16 10Yes. 02:21:17 11 A.There are several businesses there; right? 02:21:17 12 Q.Yes. 02:21:19 13 A.Would it be fair to say there may be 20 or 02:21:20 14 Q.more businesses in that complex? 02:21:22 15I don't know how many exactly, but they have 02:21:25 16 A.their fair share of medical facilities. 02:21:27 17So, that's not limited to women's health 02:21:28 18 Q.issues or abortion; correct? 02:21:33 19Correct. 02:21:34 20 A.There are lost of different types of medical 02:21:34 21 Q.businesses there? 02:21:36 22Yes. 02:21:37 23 A.Is there an eye doctor there; do you know? 02:21:37 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
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117I have no idea. 02:21:40 1 A.Is the Red Cross there?02:21:40 2 Q.I know the Red Cross is there. I don't know 02:21:40 3 A.if they're in that building or not.02:21:44 4Do you know whether there's a Subway 02:21:44 5 Q.Restaurant in the building to the far north of 02:21:46 6the complex? 02:21:49 7Yes, I believe there is. 02:21:50 8 A.Okay. As you're coming off of the Mass. Pike 02:21:51 9 Q.and I believe on 91, and you get off the exit 02:21:56 10and you see the complex on your left-hand 02:22:00 11side? 02:22:02 12Yes.02:22:02 13 A.How then do you enter into the Planned 02:22:03 14 Q.Parenthood facility; how do you get into the 02:22:03 15parking lot?02:22:08 16I go left, and I go down and go down Wason 02:22:08 17 A.Street. 02:22:11 18You go down Wason Avenue; is that correct? 02:22:11 19 Q.Wason Avenue. 02:22:13 20 A.Now, the last time you went there, how many 02:22:13 21 Q.buffer lines did you see on the street on 02:22:15 22Wason Avenue? 02:22:20 23Just the one as far as I know. 02:22:20 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
118And where was that located in the best of your 02:22:22 1 Q.recollection? 02:22:25 2Right around the entrance, the driveway 02:22:26 3 A.entrance. 02:22:32 4Which driveway entrance? 02:22:32 5 Q.The Wason Street, the Wason Ave. 02:22:34 6 A.Are there not two Wason Avenue driveway 02:22:36 7 Q.entrances? 02:22:42 8No. I believe there's only the one. 02:22:42 9 A.How many times have you visited that medical 02:22:45 10 Q.complex? 02:22:48 11I go there quite often. 02:22:49 12 A.Can you give me an estimate over the last 02:22:51 13 Q.three years how many times you've been there? 02:22:55 14At least a few hundred times. If you're 02:22:58 15 A.talking about, I'm looking at the entryway 02:23:03 16that leads right into the medical building. 02:23:05 17I'm not looking at the entryway that is before 02:23:09 18the entrance by the building with the white 02:23:13 19roof. 02:23:16 20Okay. It sounds to me that you would agree 02:23:16 21 Q.with me that there are two driveways that go 02:23:18 22into the medical complex; is that correct?02:23:22 23Yes. 02:23:23 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
119Off of Wason Avenue? 02:23:23 1 Q.Yes. 02:23:25 2 A.Would you agree with me that there are three 02:23:25 3 Q.driveways that go into the medical complex 02:23:28 4from Main Street? 02:23:31 5Yes. 02:23:32 6 A.The last time that you were at the complex, 02:23:33 7 Q.how many buffer zones did you notice along 02:23:38 8Main Street?02:23:38 9Just the one. 02:23:44 10 A.And which driveway was that around? 02:23:44 11 Q.I would call it the main drive.02:23:47 12 A.Could we call one a south, a middle, and a 02:23:51 13 Q.north? 02:23:55 14Yes. 02:23:55 15 A.Which one would it be around? 02:23:55 16 Q.The middle. 02:23:57 17 A.I believe you testified earlier that the 02:23:58 18 Q.driveway furthest to the west on Wason Avenue 02:24:02 19directly in front of the building housing 02:24:08 20Planned Parenthood, that's the driveway 02:24:10 21that -- 02:24:12 22Is marked. 02:24:13 23 A.But that's the driveway that's for Planned 02:24:14 24 Q.
DEPOSITION OF MICHAEL BANIUKIEWICZ
120Parenthood if you will? 02:24:17 1Yes. 02:24:17 2 A.And the other driveways are for the medical 02:24:18 3 Q.complex? 02:24:21 4Yes. 02:24:22 5 A.Where in that building is Planned Parenthood 02:24:22 6 Q.located? 02:24:30 7Second floor. 02:24:31 8 A.Help me out here, because I've never been 02:24:32 9 Q.inside either of these buildings. It looks to 02:24:38 10me as I look at this photograph that the 02:24:39 11building at 3550 Main Street, it looks like 02:24:43 12there's a long horizontal building as you 02:24:47 13pointed out? 02:24:49 14Yes. 02:24:49 15 A.And then it looks like behind it there are two 02:24:50 16 Q.towers attached to that; is that correct? 02:24:52 17Yes, I guess you could call them towers.02:24:54 18 A.Is that part of the same building; is that one 02:24:59 19 Q.building?02:24:59 20Yes. 02:25:01 21 A.So, is Planned Parenthood in that kind of long 02:25:01 22 Q.horizontal building?02:25:05 23It's in the building with the red facade. 02:25:06 24 A.
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So, it would be in the building that faces 02:25:10 1 Q.Wason Avenue? 02:25:15 2Yes. 02:25:15 3 A.It's not in the towers behind it? 02:25:16 4 Q.No. 02:25:17 5 A.Is their office located along the front of the 02:25:18 6 Q.building, their office meaning Planned 02:25:18 7Parenthood? 02:25:18 8Planned Parenthood is not really in the front 02:25:27 9 A.of the building. It's more towards the back 02:25:28 10of the building. 02:25:32 11Could anybody look out a window from the 02:25:33 12 Q.Planned Parenthood offices in Springfield and 02:25:38 13look at the driveway on Wason Avenue, the 02:25:39 14driveway that you say services Planned 02:25:42 15Parenthood? 02:25:44 16No. 02:25:44 17 A.Is it fair to say that your security officer 02:25:45 18 Q.in Planned Parenthood cannot observe what's 02:25:48 19going on outside of the driveway while he's 02:25:51 20inside the building? 02:25:54 21My officer has cameras that he watches. 02:25:54 22 A.Where are those cameras focussed on? 02:25:58 23 Q.Hopefully, they're focussed on the parking 02:26:04 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
122
lot. 02:26:06 1Which parking lot? 02:26:06 2 Q.The main parking lot that Planned Parenthood 02:26:08 3 A.uses. 02:26:10 4I want you to be very careful here and tell me 02:26:11 5 Q.what the main parking lot is. Are you 02:26:15 6describing the parking lot that's between 02:26:17 7Wason Avenue and the building housing Planned 02:26:22 8Parenthood? 02:26:24 9Yes. 02:26:24 10 A.So, there's a camera on that particular 02:26:24 11 Q.parking lot? 02:26:28 12Yes. 02:26:28 13 A.Where else is there a camera? 02:26:29 14 Q.We have cameras around the area. You know, we 02:26:32 15 A.try to cover -- they cover as much of the 02:26:35 16property as possible as viewable. 02:26:38 17When you say the property, tell me what you 02:26:41 18 Q.mean by the property. 02:26:45 19I'm talking about the Planned Parenthood 02:26:45 20 A.property building and its surrounding area. 02:26:47 21Do you know whether or not Planned Parenthood 02:26:52 22 Q.owns the building they're in? 02:26:54 23I have no idea. I don't believe they do. 02:26:55 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
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Do you know whether or not Planned Parenthood 02:26:59 1 Q.owns any portion of that medical complex? 02:27:03 2I have no idea. 02:27:03 3 A.Is it your understanding when you talk about 02:27:04 4 Q.the Planned Parenthood property, we're using 02:27:08 5that term loosely, it essentially covers say 02:27:11 6if we could run lines from either side of the 02:27:17 7building they're in say in a straight line out 02:27:20 8to Wason Avenue; is it limited to that? 02:27:24 9
MR. SALINGER: Objection. What do 02:27:26 10you mean the Planned Parenthood property?02:27:29 11
MR. DePRIMO: I'm using his term I 02:27:32 12believe.02:27:32 13
MR. SALINGER: Objection. I have no 02:27:35 14idea what your question is.02:27:36 15
MR. DePRIMO: Okay, let me rephrase 02:27:36 16this. This is something I want to try to 02:27:36 17understand here, because I'm not understanding 02:27:36 18it. 02:27:36 19As we look at Exhibit Number 8 for the Shea 02:27:36 20 Q.Deposition, in the middle to the left of the 02:27:43 21photograph, we see a long building, right, 02:27:47 22that's got red brick. 02:27:50 23
If we draw straight lines from the edges 02:27:52 24DEPOSITION OF MICHAEL BANIUKIEWICZ
124
of that building -- do you follow me -- to the 02:27:56 1street Wason Avenue, we're sort of framing the 02:27:59 2parking lot that's between the building and 02:28:04 3Wason Avenue; do you understand my question? 02:28:06 4
MR. SALINGER: You haven't asked a 02:28:10 5question. 02:28:12 6
MR. DePRIMO: I'm asking if he 02:28:13 7understands. 02:28:15 8I understand what you're talking about 02:28:15 9 A.properties.02:28:17 10So, you understand what I'm focussing on is 02:28:18 11 Q.the area that is immediately in front of the 02:28:21 12building housing Planned Parenthood to Wason 02:28:24 13Avenue? 02:28:26 14Yes. 02:28:26 15 A.Would you say that that's the part of the 02:28:27 16 Q.medical complex, if you will, that -- well, 02:28:32 17how would you describe it? Use your own 02:28:37 18terms. 02:28:41 19Planned Parenthood is a part of this medical 02:28:41 20 A.building. They don't use the whole building. 02:28:45 21They rent, lease, own a portion of it. My 02:28:48 22idea of Planned Parenthood property, if I use 02:28:58 23that word and I use it kind of loosely, 02:29:01 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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125because they are part of the building, they 02:29:05 1have certain assurances that, you know, what 02:29:09 2their normal business would be would be kept 02:29:17 3as its normal business, and what we would 02:29:22 4assume to be properties that would concern us 02:29:26 5would be within the section behind the two 02:29:30 6square buildings and the two square roofs to 02:29:36 7the right of the other white square roof and 02:29:40 8to the left of the railroad tracks and the 02:29:45 9railroad area. So, that portion would be what 02:29:52 10I would consider what they would be concerned 02:29:55 11of, would be concerned about. 02:29:58 12And what you would be concerned about is the 02:29:59 13 Q.security issue for Planned Parenthood? 02:30:04 14Yes. 02:30:05 15 A.Let's look at Exhibit 8 in the Shea Deposition 02:30:05 16 Q.again. Looking at the photograph to the right 02:30:09 17of the Planned Parenthood building, you see a 02:30:12 18building with a white roof; correct? 02:30:13 19Yes. 02:30:14 20 A.And to the right of that building between that 02:30:15 21 Q.building and Main Street, you see a parking 02:30:18 22lot; right?02:30:21 23Yes. 02:30:21 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
126That parking lot is not of concern to you as a 02:30:21 1 Q.security official for Planned Parenthood; 02:30:25 2right? 02:30:27 3I see now. It wouldn't be up to me to make 02:30:27 4 A.that decision. If Planned Parenthood has an 02:30:35 5arrangement that that would be a part of our 02:30:37 6concern, then it would be a part of our 02:30:40 7concern.02:30:40 8Do you have security cameras monitoring that 02:30:43 9 Q.area? 02:30:47 10Not that I know of. 02:30:47 11 A.Going north along Main Street continuing along 02:30:49 12 Q.the parking lot; do you see that? 02:30:54 13Yes. 02:30:55 14 A.Do you have cameras that are viewing that 02:30:56 15 Q.parking lot that's between Main Street and say 02:30:56 16the building with the two towers? 02:31:05 17If you're talking about the area where the 02:31:08 18 A.little red tag is, we do have views of that 02:31:11 19parking lot. 02:31:14 20What do you mean when you say you have views 02:31:14 21 Q.of it? 02:31:18 22We do have cameras sighting on that section of 02:31:18 23 A.the parking lot. 02:31:20 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
127And we're talking about the middle driveway; 02:31:20 1 Q.is that right? 02:31:22 2Yes. 02:31:22 3 A.Do you have cameras at the southern driveway? 02:31:22 4 Q.No. 02:31:27 5 A.Do you have cameras at the northern driveway?02:31:27 6 Q.Up front here, not that I know of. To my, and 02:31:29 7 A.I don't view all the camera sightings, we do 02:31:36 8have view of this section of the main lot. 02:31:40 9You're in charge of security, and you don't 02:31:43 10 Q.know where the security cameras are for the 02:31:46 11facility? 02:31:48 12I unfortunately don't check the cameras all 02:31:48 13 A.the time, so I don't know what the men are 02:31:51 14looking at.02:31:51 15But you would know if they were installed; 02:31:54 16 Q.wouldn't you? 02:31:56 17Yes. 02:31:56 18 A.Wouldn't they tell you that certain cameras 02:31:56 19 Q.were installed in certain places? 02:31:59 20Yes. 02:31:59 21 A.And you have not been advised that there are 02:31:59 22 Q.cameras at the driveways on the north and the 02:32:03 23south driveways on Main Street; is that right? 02:32:06 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
128That's correct. 02:32:07 1 A.And you also don't have a camera with what 02:32:07 2 Q.I'll call the eastern driveway on Wason 02:32:11 3Avenue; is that correct? 02:32:13 4Eastern? 02:32:13 5 A.The eastern driveway would be the driveway, 02:32:14 6 Q.the first driveway that you encounter if you 02:32:18 7take a left off of Main Street going down 02:32:21 8Wason Avenue? 02:32:23 9No. 02:32:23 10 A.No, there are no cameras there; right? 02:32:24 11 Q.No. 02:32:28 12 A.And you testified earlier that pro-life 02:32:28 13 Q.literature rarely enters into the Planned 02:32:42 14Parenthood in Springfield, because people 02:32:45 15throw the literature in the trash before they 02:32:47 16go up to the facility on the second floor? 02:32:51 17Correct. 02:32:54 18 A.How do you know that? 02:32:56 19 Q.I don't. That's my assumption. 02:32:57 20 A.That's an assumption; you don't know? 02:32:59 21 Q.That's correct.02:33:02 22 A.
MR. DePRIMO: I'll pass the Witness.02:33:04 23THE WITNESS: I feel like a football. 02:33:04 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
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RECROSS-EXAMINATION02:33:09 1
(B y Ms. Viator)02:33:09 2
If you could just look back at Exhibit 02:33:13 3 Q.
Number 4, p lease, the aerial shot of 02:33:14 4
W orcester, and the area where you had marked 02:33:17 5
emergency, there's a concrete -- is there a 02:33:23 6
concrete walkway there? 02:33:26 7
Yes. 02:33:28 8 A.
And are patients able to walk on Pleasant 02:33:29 9 Q.
Street and enter the cl inic that way? 02:33:34 10
I guess if they wanted to, they could. 02:33:36 11 A.
And do they som etim es? 02:33:39 12 Q.
I can't say for certain. Norm ally, w hen I see 02:33:40 13 A.
people coming in, they're already com ing 02:33:47 14
through the door. 02:33:50 15
W here is the door to the clinic relative to 02:33:51 16 Q.
that walkway? 02:33:56 17
It's right in front of that w alkway, right 02:33:57 18 A.
underneath the overhang. 02:34:04 19
So, a patient is able to walk through the 02:34:06 20 Q.
fence that, through the opening in the fence 02:34:14 21
that Attorney DePrim o descr ibed and walk to 02:34:20 22
P leasant Street through that exit; r ight? 02:34:22 23
Yes. 02:34:24 24 A.
DEPOSITION OF MICHAEL BANIUKIEWICZ
130
MS. VIATOR: I think that's al l that 02:34:26 1
we have. 02:34:29 2
MR. DePRIMO: I have just one more 02:34:30 3
question. 02:34:31 4
REDIRECT EXAMINATION02:34:31 5
(B y Mr. DePrimo)02:34:32 6
Looking at Exhib it 4 in your Deposit ion, the 02:34:32 7 Q.
aerial photograph of Planned Parenthood in 02:34:38 8
W orcester, from the edge of the public 02:34:39 9
sidewalk in front of the walkway to the 02:34:43 10
entrance, would you estim ate for that to be 02:34:47 11
about 75 feet? 02:34:52 12
To the actual door entrance or to the building 02:34:53 13 A.
itself? 02:35:00 14
To the door going into Planned Parenthood? 02:35:00 15 Q.
Probably 70 feet, yeah. 02:35:03 16 A.
MR. DePRIMO: I have nothing further. 02:35:10 17
MS. VIATOR: I think we're done.02:35:15 18
MR. DePRIMO: Mr. Baniukiewicz, you 02:35:15 19
survived your deposit ion. Your deposit ion 02:35:20 20
rem a ins open, and you' ll get m e those 02:35:20 21
documents; r ight?02:35:23 22
THE WITNESS: Yes. 02:35:25 23
MR. DePRIMO: Thank you, by next 02:35:26 24
DEPOSITION OF MICHAEL BANIUKIEWICZ
131
Wednesday, c lose of business?02:35:27 1
THE WITNESS: What 's W ednesday?02:35:27 2
MR. DePRIMO: Next W ednesday we said; 02:35:30 3
right?02:35:31 4
THE WITNESS: I 'll get the things 02:35:33 5
that you need. 02:35:34 6
MR. DePRIMO: Thank you. 02:35:35 7
(W hereupon, the Deposit ion02:35:37 8
was suspended at 12:20 p.m .)9
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DEPOSITION OF MICHAEL BANIUKIEWICZ
132W ITNESS CERTIFICATE/ERRATA SHEET1
I, M ichael Baniukiewicz, do hereby certify that 2I have read the foregoing transcript of m y testim ony, and further certify that said transcript 3is a true and accurate record of said testimony.
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WITNESS CERTIFICATE/ERRATA SHEET
I, Michael Baniukiewicz, do hereby certify that I have read the foregoing transcript of my testimony, and further certify that said transcript iz a true and accurate record of said testimony.
PAGE LINE SHOULD READ
SIGNED UN ER THE PAINS AND PENALTIES OF PERJURY THIS
DAY OF 2011.
077 Michael Baniukiew
Aug 09 11 12:34p M Metro 5087939666 p.2 Aug. 8. 2011 10:07Ar1 16.1655 P.
DEPOSITION OF MICHAEL BANIUKIEWICZ
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1 of 37 sheets Page 1 to 4 of 117 08/03/2011 08:41:28 AM
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION
C.A. No. 1:08-CV-10066-JLT Vol. I, Pg. 1-107
ELEANOR McCULLEN, JEAN BLACKBURN ZARELLA,) GREGORY A. SMITH, ERIC CADIN, CYRIL SHEA,)NANCY CLARK and MARK BASHOUR, )
)Plaintiffs, )
)-vs- )
)MARTHA COAKLEY, Attorney General for )The COMMONWEALTH OF MASSACHUSETTS, )DANIEL F. CONLEY, District Attorney )for Suffolk County, MARK G. MASTROIANNI, )District Attorney for Hampden County, )and JOSEPH D. EARLY, District Attorney )for Worcester County, )
Defendants )
The DEPOSITION OF KRISTEN METZGER, taken on
behalf of the Plaintiff, pursuant to the
Massachusetts Rules of Civil Procedure before
Mary K. Corcoran, a Professional Shorthand Reporter
and Notary Public in and for the Commonwealth of
Massachusetts, at the OFFICE OF THE ATTORNEY
GENERAL, 100 Cambridge Street, 11th Floor,
Boston, MA, on Wednesday, July 27, 2011, commencing
at 1:06 p.m.
ELLEN M. FRITCH & ASSOCIATES373 Silver Street
South Boston, MA 02127(617) 269-5448
2A P P E A R A N C E S1
2
For the P la in t if fs:3
M ICHAEL J . D e P R IM O , E sq .4778 Choa t e AvenueHam d e n , C T 0 6 5 1 85
6For the De fendan ts :
7Kenne th W . Sa l inge r , Esq .G a b riel le V ia tor, E sq .8C O M M O N W E A L T H O F M A S S A C H U S E T T SO ff i ce o f the At torney G enera l9Civ il R igh ts D iv is ionOne A shbu r to n P lace , 18 th F lo o r10Bos ton , M A 0 2 1 0 8
11
A lso P resen t :12
M s. S ri Kuehn l enz , In te rn 131415161718192021222324
DEPOSITION OF KRISTEN METZGER
3 I N D E X1
D E P O N E N T Page2
K R I S T E N M E T Z G E R3 D irec t Exam inat io n b y M r . DeP r im o 44C ross -Exam in a ti on by M r. S a li nge r 72R e d irec t Exam in at io n b y M r . DeP rim o 96 5
6
E X H I B I T S7
N o . Desc r ip t io n P age8
1 Pho to g raph 1 292 Pho to g raph 2 03 Pho to g raph 3 1104 Pho to g raph 6 45 Pho to g raph 6 6116 Pho to g raph 7 47 Pho to g raph 7 5128 Pho to g raph 7 89 Pho to g raph 7 913
10 P am p h le t 8311 Pho tog raph 841412 Su c ti on & Cure t tage 8813 P r egnan t W e C a n H e lp 8 81514 Pho tog raph 9015 Pho tog raph 911616 Pho tog raph 9317 Pho tog raph 9417
18192021222324
DEPOSITION OF KRISTEN METZGER
4
P R O C E E D I N G S1(W i tness sw orn.) 2
K R IS T E N M E T Z G E R ,3hav ing been sa t is factor i ly ident i f ied by the 4product ion o f her M assachuse t t s ID , and du ly s w o rn 5by the No ta ry Pub lic, w as exam ined and tes t i f i ed on 6h e r oath as fo l lo w s :7
D I R E C T E X A M IN A T IO N8( B y M r. D e P rim o )00:00:00 9
M s. M e tzge r, good a f te rnoon , m y nam e is 00:00:00 10 Q.M ichae l DeP r im o. W e m et a few m inu tes ago . 00:00:02 11M m -h m m . 00:00:05 12 A.I'm g o ing t o be a sk i ng you ques ti ons about the 00:00:05 13 Q.case , M cCu ll en v . Coak ley , and your 00:00:08 14in ves t ig atio n thereo f . 00:00:10 15Y e s . 00:00:11 16 A.I n eed you t o a c tu a lly art icu late you r an swe r. 00:00:12 17 Q.If y ou nod you r head , t he Cou rt R epor te r can 't 00:00:17 18put it d own . 00:00:18 19O k a y . 00:00:18 20 A.Have you eve r been deposed be fo re? 00:00:18 21 Q.N o . 00:00:20 22 A.I'm sim p ly go ing to ask you som e ques tions. I 00:00:21 23 Q.w o u ld a sk you to re spond com p le te ly a nd 00:00:24 24
DEPOSITION OF KRISTEN METZGER
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5accurately and truthfully. Would you do that 00:00:25 1for me? 00:00:27 2Yes. 00:00:28 3 A.And after I finish with my questions, then 00:00:28 4 Q.either Mr. Salinger or Ms. Viator might have 00:00:31 5some questions for you. 00:00:35 6Okay. 00:00:36 7 A.Let me begin by asking you what your education 00:00:37 8 Q.is? 00:00:40 9I went to undergrad at Stonehill College. 00:00:40 10 A.And what did you study? 00:00:44 11 Q.Sociology, and I'm currently in a master's 00:00:46 12 A.program right now at Suffolk University. 00:00:50 13So, did you graduate with a bachelor's degree? 00:00:52 14 Q.Yes. 00:00:55 15 A.And what are you studying in your master's 00:00:55 16 Q.program?00:00:55 17Public administration. 00:00:58 18 A.Do you plan on going further than that once 00:00:59 19 Q.you get your degree?00:00:59 20I don't know. I'm not sure. 00:01:02 21 A.Tell me a little bit about your work history. 00:01:03 22 Q.I worked at an insurance company when I got 00:01:06 23 A.out of college, and then I came here to the 00:01:10 24
DEPOSITION OF KRISTEN METZGER
6AG's office. 00:01:12 1What did you do for the insurance company? 00:01:12 2 Q.I was a claims adjuster. 00:01:13 3 A.And how long did you do that? 00:01:15 4 Q.About a year and a half. 00:01:16 5 A.And when did you join the Attorney General's 00:01:17 6 Q.Office? 00:01:21 7February 2008. 00:01:21 8 A.And what is your job title? 00:01:22 9 Q.Investigator. 00:01:24 10 A.And what's your job description if you know? 00:01:26 11 Q.I do various investigations for the Public 00:01:30 12 A.Protection Advocacy Bureau, so it could be 00:01:34 13anything from locating, interviewing witnesses 00:01:37 14to doing background checks on people and 00:01:39 15corporations. It could be undercover work or 00:01:43 16do research. It really varies. 00:01:46 17What kind of training have you undergone to do 00:01:48 18 Q.this? 00:01:52 19It's mostly on-the-job training. I've had 00:01:52 20 A.various trainings, like interviewing technique 00:01:56 21training and like training with various 00:01:59 22programs that we use, databases. 00:02:02 23Have you gone to any seminars? 00:02:05 24 Q.
DEPOSITION OF KRISTEN METZGER
7Yes. 00:02:07 1 A.What were the seminars like? 00:02:08 2 Q.I've gone to -- recently I went to, what was 00:02:10 3 A.it, counterfeit product training, just 00:02:14 4recognizing counterfeit products. 00:02:19 5Have you been given training in how to write 00:02:19 6 Q.an accurate report? 00:02:23 7No. 00:02:24 8 A.Would you say that the reports that you've 00:02:25 9 Q.written have been accurate? 00:02:28 10Yes. 00:02:29 11 A.That includes the memos in this case? 00:02:30 12 Q.Yes. 00:02:32 13 A.Who do you report that? 00:02:33 14 Q.My supervisor is Quinton Dale. 00:02:35 15 A.And who is Quinton Dale? 00:02:38 16 Q.He's director of investigations. 00:02:41 17 A.Do you report to anybody in this particular 00:02:43 18 Q.case? 00:02:46 19In this case, I've been working with Assistant 00:02:46 20 A.Attorney General Viator. 00:02:51 21Does the name Eleanor McCullen mean anything 00:02:51 22 Q.to you? 00:02:54 23Not really. 00:02:55 24 A.
DEPOSITION OF KRISTEN METZGER
8When you say not really, what do you mean? 00:02:56 1 Q.I don't know who that person is. 00:02:58 2 A.You wouldn't be able to identify her? 00:02:59 3 Q.No. 00:03:02 4 A.You couldn't pick her out of a lineup? 00:03:02 5 Q.No. 00:03:04 6 A.Does the name Nancy Clark mean anything to 00:03:04 7 Q.you? 00:03:06 8No. 00:03:06 9 A.You couldn't identify her either? 00:03:06 10 Q.No. 00:03:08 11 A.How about the name Mark Bashour? 00:03:09 12 Q.No. 00:03:12 13 A.You couldn't identify him either? 00:03:12 14 Q.No. 00:03:14 15 A.Does the name Cyril Shea mean anything to you? 00:03:14 16 Q.No. 00:03:16 17 A.Could you identify him? 00:03:16 18 Q.No. 00:03:18 19 A.Does the name Greg Smith mean anything to you? 00:03:18 20 Q.No. 00:03:22 21 A.You couldn't identify him either? 00:03:23 22 Q.No. 00:03:25 23 A.Does the name Eric Cadin mean anything to you? 00:03:25 24 Q.
DEPOSITION OF KRISTEN METZGER
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9No. 00:03:28 1 A.You couldn't identify him? 00:03:29 2 Q.No. 00:03:30 3 A.How about Jean Blackburn Zarrella? 00:03:31 4 Q.No. 00:03:34 5 A.And you could not identify her either? 00:03:35 6 Q.No. 00:03:37 7 A.So, it's fair to say that you've never had any 00:03:38 8 Q.interaction with any of the people that I've 00:03:41 9just named? 00:03:44 10Correct. 00:03:45 11 A.Now, on Friday, April 2 of 2010, you went to 00:03:45 12 Q.Planned Parenthood at 1055 Commonwealth Avenue 00:03:52 13in Boston; is that correct? 00:03:55 14Yes. 00:03:57 15 A.And you went at approximately 9:00 a.m.? 00:03:57 16 Q.Yes. 00:04:00 17 A.And that day was Good Friday; was it not? 00:04:00 18 Q.Yes. 00:04:03 19 A.Why did you choose that particular day? 00:04:04 20 Q.I think we heard that it was going to be a big 00:04:07 21 A.crowd that day. 00:04:12 22Is that why you chose it, because there was 00:04:13 23 Q.going to be a big crowd that day? 00:04:17 24
DEPOSITION OF KRISTEN METZGER
10Yes. 00:04:19 1 A.And whose idea was it to go there that day? 00:04:19 2 Q.AAG Viator. 00:04:21 3 A.Now, when you were there, you observed a small 00:04:25 4 Q.coffin that was on the sidewalk on 00:04:29 5Commonwealth Avenue in front of the clinic; is 00:04:31 6that right? 00:04:34 7Yes. 00:04:34 8 A.And it was filled with flowers and rosary 00:04:34 9 Q.beads? 00:04:37 10Yes. 00:04:38 11 A.And there were people gathered around it?00:04:38 12 Q.Yes.00:04:38 13 A.And you also observed three women counsellors 00:04:40 14 Q.talking to a young Hispanic woman; is that 00:04:43 15right? 00:04:46 16Yes. 00:04:46 17 A.And they were in front of Shaw's Market? 00:04:46 18 Q.Yes on. 00:04:49 19 A.On the corner of Alcorn and Commonwealth 00:04:50 20 Q.Avenue? 00:04:53 21Yes. 00:04:53 22 A.And you saw one woman hand -- I'll withdraw 00:04:53 23 Q.that. You saw one of those women place her 00:04:57 24
DEPOSITION OF KRISTEN METZGER
11hand on the young women's shoulder; is that 00:05:02 1correct? 00:05:04 2Yes. 00:05:04 3 A.Would you characterize the placing of a hand 00:05:05 4 Q.on the shoulder as a demonstration of 00:05:10 5compassion? 00:05:14 6I'm not sure. 00:05:14 7 A.Not sure? 00:05:20 8 Q.Yes. 00:05:21 9 A.Demonstration of comfort?00:05:21 10 Q.Yeah. 00:05:24 11 A.Demonstration of empathy perhaps? 00:05:25 12 Q.Yes. 00:05:28 13 A.Perhaps some fraternal love? 00:05:28 14 Q.I don't know about that. 00:05:32 15 A.Would you view it as positive rather than 00:05:33 16 Q.negative? 00:05:37 17I can't say. 00:05:37 18 A.Why can't you say? 00:05:38 19 Q.I don't know what the Hispanic woman was 00:05:42 20 A.thinking. 00:05:47 21Did this Hispanic look like she was taken 00:05:47 22 Q.aback by that? 00:05:51 23What do you mean taken aback?00:05:53 24 A.
DEPOSITION OF KRISTEN METZGER
12Offended?00:05:53 1 Q.She didn't look offended.00:05:57 2 A.Could you hear what these people were saying?00:05:59 3 Q.No. 00:06:02 4 A.By the way, let me hand you what we're going 00:06:02 5 Q.to mark as Exhibit Number 1 for your 00:06:06 6deposition. 00:06:44 7
(Exhibit No. 1 marked 00:06:44 8for Identification.) 00:06:44 9(Shown to the Witness.) 00:06:45 10
I'm going to hand you what's been marked as 00:06:45 11 Q.Exhibit Number 1 for your deposition. Can you 00:06:47 12tell me if you can identify what's depicted in 00:06:48 13this photograph? 00:06:50 14The front of Planned Parenthood. 00:06:51 15 A.And are we talking about Planned Parenthood on 00:06:52 16 Q.Commonwealth Avenue in Boston? 00:06:55 17Yes. 00:06:56 18 A.There are very few people in the photograph; 00:06:57 19 Q.is that correct? 00:07:03 20Yes. 00:07:03 21 A.So, this is not the way it looked like on 00:07:04 22 Q.April 2, 2010, when you were there; is that 00:07:07 23right? 00:07:09 24
DEPOSITION OF KRISTEN METZGER
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Correct. 00:07:09 1 A.Nevertheless, it's an accurate depiction of 00:07:10 2 Q.the general area? 00:07:15 3Yes. 00:07:16 4 A.Could you tell me where you were standing on 00:07:16 5 Q.April 2 of 2010 when you observed the Hispanic 00:07:19 6woman and the other woman talking with her?00:07:23 7I think I was standing in various places, and 00:07:24 8 A.I would have been on Alcorn Street. 00:07:27 9I'll tell you what, I'm going to hand you a 00:07:29 10 Q.pen, and i would ask you if you could to 00:07:32 11actually mark on that document and just kind 00:07:35 12of circle the various places that you were in. 00:07:38 13You could say like one circle, two circle, 00:07:41 14three circle for the various places that you 00:07:43 15were standing? 00:07:46 16Okay. I marked one on Alcorn Street and the 00:07:47 17 A.second one on the roof. 00:07:50 18Can I look at that just very quickly so I can 00:07:54 19 Q.see where you marked it? 00:07:58 20(Witness complies.) 00:08:00 21 A.So, it looks to me like Number 1 you are on 00:08:01 22 Q.Alcorn Street on a public sidewalk next to the 00:08:03 23Star Market; is that correct? 00:08:07 24
DEPOSITION OF KRISTEN METZGER
14
Yes. 00:08:09 1 A.Go ahead. 00:08:11 2 Q.I might have been in the street, too. 00:08:12 3 A.You may have been in the street. How far were 00:08:14 4 Q.you from these women and Hispanic woman? 00:08:16 5I don't know. 00:08:20 6 A.Can you guess approximately?00:08:21 7 Q.
MR. SALINGER: You're asking the 00:08:26 8Witness to guess? 00:08:27 9
MR. DePRIMO: Well, she can estimate 00:08:28 10how far she was. I mean, if she doesn't know, 00:08:30 11she doesn't know. 00:08:33 12Yeah, I don't know exactly. 00:08:33 13 A.And I think I might have asked you this, but 00:08:35 14 Q.I'll ask it again, because I don't recall. 00:08:40 15Were you able to actually hear what the people 00:08:41 16were saying to the Hispanic woman? 00:08:43 17No. 00:08:46 18 A.When you were observing the women and the 00:08:46 19 Q.Hispanic woman, were you on the street at that 00:08:50 20time or were you up on the roof? 00:08:53 21I was on the street first. 00:08:54 22 A.When you went up to the roof, was the Hispanic 00:08:56 23 Q.woman and the three women still talking? 00:09:00 24
DEPOSITION OF KRISTEN METZGER
15
Yes. 00:09:03 1 A.Were you able to hear them from up there? 00:09:04 2 Q.No. 00:09:06 3 A.What else did you observe from your position 00:09:07 4 Q.where you were marked Number 1? 00:09:10 5Someone was holding a sign on the corner of 00:09:13 6 A.Alcorn Street in front of Star Market. I 00:09:23 7think it said choose life, and it was pink, 00:09:25 8and I could see the entire crowd around the 00:09:28 9Planned Parenthood on Commonwealth Ave. on the 00:09:31 10sidewalk. I could also hear people saying 00:09:34 11things. They were saying -- 00:09:38 12
MR. DEPRIMO: Oh, I'm sorry. Off the 00:09:38 13record. 00:09:54 14
(Brief discussion held00:09:54 15off the record.)00:09:54 16(Short break taken.)00:11:59 17
Getting back to this young Hispanic woman that 00:11:59 18 Q.you observed on the corner of Commonwealth and 00:12:07 19Alcorn Street, she was speaking with three 00:12:10 20women; is that correct? 00:12:12 21Yes. 00:12:13 22 A.Were you able to -- I think you testified that 00:12:13 23 Q.you were not able to hear them from your 00:12:14 24
DEPOSITION OF KRISTEN METZGER
16
vantage point on Alcorn Street; correct? 00:12:17 1I wasn't hearing what they were saying to her. 00:12:18 2 A.Were you able to hear them? 00:12:21 3 Q.Yes. 00:12:23 4 A.So, you just couldn't make out except the 00:12:24 5 Q.words; is that correct? 00:12:25 6I couldn't hear them speaking to her, but I 00:12:26 7 A.heard them earlier. 00:12:29 8But you could not hear them speaking to her? 00:12:29 9 Q.Yes. 00:12:32 10 A.You were able to hear them earlier from the 00:12:32 11 Q.same vantage point? 00:12:36 12Yes. 00:12:37 13 A.Could you tell whether or not they were 00:12:38 14 Q.speaking in a normal conversational level?00:12:40 15I guess I was, because I couldn't hear them. 00:12:43 16 A.And eventually, you saw this young Hispanic 00:12:46 17 Q.woman go into Planned Parenthood; correct? 00:12:51 18Sorry? 00:12:54 19 A.At one point, did you see this young woman go 00:12:54 20 Q.into Planned Parenthood? Let me withdraw that 00:13:00 21question. I think I misspoke. 00:13:02 22
After you observed the three women 00:13:05 23talking with this young Hispanic woman, did 00:13:09 24
DEPOSITION OF KRISTEN METZGER
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17you observe the young Hispanic woman accompany 00:13:12 1two women to a car? 00:13:15 2Yes. 00:13:16 3 A.And the women got in the car?00:13:16 4 Q.Yes.00:13:16 5 A.And they drove away together? 00:13:17 6 Q.Yes. 00:13:18 7 A.Did the woman, the young Hispanic woman, get 00:13:18 8 Q.into the car voluntarily? 00:13:22 9Yes. 00:13:25 10 A.That same day, August 2 of 2010, you also saw 00:13:26 11 Q.two people on Alcorn Street outside the buffer 00:13:32 12zone with a sign? I'm sorry. 00:13:36 13You said April or August? 00:13:40 14 A.April 2, 2010? 00:13:42 15 Q.Okay. 00:13:47 16 A.You also heard a couple of gentlemen saying 00:13:48 17 Q.things like your baby has a heartbeat; is that 00:13:52 18correct? 00:13:56 19Yes. 00:13:56 20 A.And you also heard him say abortion is 00:13:57 21 Q.forever, we can help you? 00:13:58 22Yes. 00:13:59 23 A.And they were on Alcorn Street? 00:14:00 24 Q.
DEPOSITION OF KRISTEN METZGER
18Yes. 00:14:02 1 A.And where were you standing at that time? 00:14:02 2 Q.I'm not sure. 00:14:04 3 A.So, you might have been on Alcorn Street or on 00:14:06 4 Q.the top of the roof? 00:14:10 5No, I wasn't on the roof. It was either 00:14:11 6 A.Alcorn Street or on Comm. Ave. like on the 00:14:13 7sidewalk. 00:14:16 8But you were in the general location of that 00:14:17 9 Q.corner? 00:14:19 10Yes. 00:14:19 11 A.You also saw a man holding a sign that said 00:14:20 12 Q.pregnant, free help for mother and baby? 00:14:24 13Yes. 00:14:28 14 A.You saw another man holding a sign that says 00:14:28 15 Q.love creates, nourishes, protects your child's 00:14:29 16life? 00:14:34 17Yes. 00:14:34 18 A.And on the other side of that sign, it said 00:14:34 19 Q.they're killing babies here? 00:14:37 20Yes. 00:14:39 21 A.By the way, you arrived at Planned Parenthood 00:14:39 22 Q.on Commonwealth Avenue on April 2 at about 00:14:43 23nine o'clock? 00:14:47 24
DEPOSITION OF KRISTEN METZGER
19Yes. 00:14:47 1 A.And then around 9:40, you observed a group of 00:14:47 2 Q.people, about 75 people; is that right? 00:14:55 3Yes. 00:14:57 4 A.And there were men, women, and children 00:14:57 5 Q.praying and reciting a Catholic prayer? 00:15:01 6Yes. 00:15:03 7 A.Do you know whether or not the event called 40 00:15:03 8 Q.Days For Life was going on at that time? 00:15:07 9No, I don't know. 00:15:09 10 A.You don't know? 00:15:10 11 Q.No. 00:15:11 12 A.On September 14 of 2010, which was a Friday, 00:15:12 13 Q.you and Courtney Mortimer, I guess a fellow 00:15:21 14investigator; is that correct?00:15:25 15Yes. 00:15:25 16 A.You went to Planned Parenthood in Worcester at 00:15:26 17 Q.470 Pleasant Street; is that correct? 00:15:28 18Yes. 00:15:31 19 A.And when you were there, you got there at 00:15:31 20 Q.about 9:30 a.m.? 00:15:35 21Yes. 00:15:38 22 A.Is that correct? 00:15:39 23 Q.Yes. 00:15:39 24 A.
DEPOSITION OF KRISTEN METZGER
20And as you approached, you weren't quite sure 00:15:40 1 Q.which driveway to pull into; is that right? 00:15:47 2I'm sorry. Did you say September 14? 00:15:49 3 A.I said September 14, 2010. 00:15:53 4 Q.Because I think we went out September 10. 00:15:56 5 A.I stand corrected. You're right. 00:15:59 6 Q.September 10 of 2010, you went to Planned 00:16:02 7Parenthood in Worcester at 470 Pleasant 00:16:05 8Street, and you got there at approximately 00:16:09 99:30? 00:16:11 10Yes. 00:16:12 11 A.And you pulled into a driveway, a parking lot; 00:16:12 12 Q.is that correct? 00:16:16 13Correct. 00:16:17 14 A.I'm going to hand you an exhibit -- 00:16:17 15 Q.
MR. DEPRIMO: Can we mark this first?00:16:46 16(Exhibit No. 2 marked 00:16:46 17for Identification.) 00:16:46 18
I'm handing you what's been marked as 00:16:46 19 Q.Exhibit 2 for your deposition. Can you tell 00:16:50 20me if you can identify what's depicted in this 00:16:52 21photograph?00:16:55 22
(Shown to the Witness.) 00:16:55 23It looks like the Planned Parenthood facility 00:16:55 24 A.
DEPOSITION OF KRISTEN METZGER
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21in Worcester. 00:16:59 1Can you tell which is Pleasant Street looking 00:17:01 2 Q.at this photograph? 00:17:12 3The street to the left.00:17:13 4 A.You're holding it vertically -- 00:17:26 5 Q.
MR. SALINGER: With the exhibit 00:17:30 6marker at the bottom. 00:17:31 7-- with the exhibit marker at the bottom, and 00:17:31 8 Q.Pleasant Street is the long street on the 00:17:40 9right-hand side; is that correct? 00:17:42 10On my left.00:17:43 11 A.I once again had it the wrong way. I'll get 00:17:50 12 Q.it right. Pleasant Street is on your left, 00:18:07 13and where is Dewey Street? 00:18:09 14On the -- it intersects with Pleasant. 00:18:11 15 A.Can you tell on this photograph where? 00:18:15 16 Q.Yes. 00:18:17 17 A.Can you put an X at the intersection of Dewey 00:18:17 18 Q.and Pleasant Street for me? 00:18:23 19(Witness complies.) 00:18:25 20 A.And do you know which building houses Planned 00:18:27 21 Q.Parenthood? 00:18:30 22Yes. 00:18:30 23 A.The Planned Parenthood facility? 00:18:30 24 Q.
DEPOSITION OF KRISTEN METZGER
22Yes. 00:18:31 1 A.Could you put an F where that building is? 00:18:32 2 Q.(Witness complies.) 00:18:35 3 A.And do you know where the driveway entrance 00:18:37 4 Q.is --00:18:40 5Yes. 00:18:40 6 A.-- to Planned Parenthood? Would you put a D 00:18:40 7 Q.where the driveway and the street intersect? 00:18:43 8(Witness complies.) 00:18:46 9 A.And that's the intersection at Dewey Street; 00:18:48 10 Q.right? 00:18:51 11Yes. 00:18:51 12 A.Which direction were you coming from when you 00:18:51 13 Q.were approaching Planned Parenthood just as 00:18:57 14you were arriving? 00:18:59 15I was coming down Pleasant Street. I don't 00:19:00 16 A.know what direction that is. 00:19:04 17So, you were coming sort of from the top of 00:19:05 18 Q.the photograph --00:19:08 19Yes.00:19:08 20 A.-- down sort of the left-hand side of the 00:19:08 21 Q.photo? 00:19:10 22Yes. 00:19:11 23 A.And you pulled into a parking lot; is that 00:19:11 24 Q.
DEPOSITION OF KRISTEN METZGER
23right? 00:19:14 1Correct. 00:19:14 2 A.Which parking lot did you pull into? 00:19:14 3 Q.It would be the parking lot here on the corner 00:19:17 4 A.of Dewey and Pleasant. 00:19:19 5Could you put a P right where you parked? 00:19:22 6 Q.We didn't really park. We just kind of pulled 00:19:25 7 A.in. 00:19:32 8Well, you pulled in -- is it fair to say you 00:19:32 9 Q.pulled in and stopped? 00:19:34 10Yes. 00:19:35 11 A.Could you put a P where you pulled in and 00:19:36 12 Q.stopped? 00:19:39 13Yes. 00:19:39 14 A.Could I look at that just for a moment? 00:19:40 15 Q.(Witness complies.) 00:19:44 16 A.Do you know whether or not that parking lot is 00:19:45 17 Q.part of the Planned Parenthood facility? 00:19:50 18I'm pretty sure it's not part of the facility. 00:19:52 19 A.Do you know whether or not a buffer zone 00:19:56 20 Q.encumbers any of that parking lot? 00:19:59 21It does not. 00:20:01 22 A.When you first arrived and pulled into the 00:20:02 23 Q.parking lot and sort of were standing in there 00:20:07 24
DEPOSITION OF KRISTEN METZGER
24for a few minutes, a middle-aged woman 00:20:10 1approached you; is that right?00:20:14 2Yes. 00:20:14 3 A.And she identified herself as Lori; is that 00:20:15 4 Q.correct? 00:20:18 5Yes. 00:20:18 6 A.And she handed your investigative partner two 00:20:19 7 Q.brochures; is that right? 00:20:24 8Yes. 00:20:24 9 A.And she pleaded with you to go and talk with 00:20:25 10 Q.Kathy across the street? 00:20:29 11I don't think she said Kathy. 00:20:30 12 A.Do you know what she said? 00:20:32 13 Q.She said come across the street; we can help 00:20:33 14 A.you. 00:20:37 15Do you understand what she meant by come 00:20:37 16 Q.across the street? 00:20:40 17Yes. 00:20:40 18 A.What did she mean? 00:20:41 19 Q.To go to Problem Pregnancy. 00:20:41 20 A.Lori told you there were other options instead 00:20:44 21 Q.of abortion? 00:20:52 22Yes. 00:20:52 23 A.Lori said we love you to the two of you in the 00:20:52 24 Q.
DEPOSITION OF KRISTEN METZGER
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25car; is that right? 00:20:57 1Yes. 00:20:57 2 A.And at one point, Lori Egan said thanks for 00:20:57 3 Q.being so kind, because not everybody is this 00:21:00 4nice? 00:21:03 5Yes. 00:21:03 6 A.Now, as you pulled into the parking lot and 00:21:04 7 Q.then entered into the building, you heard some 00:21:08 8other women shouting from across Pleasant 00:21:12 9Street; is that right? 00:21:15 10Yes. 00:21:15 11 A.And they were over 75 yards from where you 00:21:16 12 Q.were; is that correct? 00:21:19 13
MR. SALINGER: Objection. 00:21:20 14I'm not sure. 00:21:20 15 A.Do you know how far they were? 00:21:21 16 Q.No. 00:21:24 17 A.And you heard them say we love you, please 00:21:24 18 Q.come talk to us? 00:21:30 19Yes. 00:21:32 20 A.Did you hear another woman say from across the 00:21:33 21 Q.street come and talk to us, there are other 00:21:36 22options? 00:21:38 23Yes. 00:21:39 24 A.
DEPOSITION OF KRISTEN METZGER
26Is it true that Lori repeatedly said to you, 00:21:39 1 Q.we love you, please come talk to us before you 00:21:49 2make any decision? 00:21:52 3She said it twice. 00:21:52 4 A.Would you be surprised if I told you in your 00:21:56 5 Q.report, you used the term repeatedly; would 00:22:00 6that surprise you? 00:22:03 7If it's my report, then it's in my report. I 00:22:04 8 A.don't remember writing that. 00:22:09 9After your encounter with Lori, you pulled 00:22:09 10 Q.into the parking lot behind Planned 00:22:15 11Parenthood; is that correct? 00:22:18 12Yes. 00:22:18 13 A.And you entered in through the driveway that's 00:22:19 14 Q.on Dewey Street? 00:22:22 15Yes. 00:22:24 16 A.By the way, is it your understanding that the 00:22:24 17 Q.only driveway entrance into Planned Parenthood 00:22:26 18in Worcester is through that driveway on Dewey 00:22:29 19Street? 00:22:33 20Yes. 00:22:33 21 A.And when you were on Dewey Street, you heard 00:22:34 22 Q.someone else call to you, girls, we love you, 00:22:39 23please come talk to us? 00:22:43 24
DEPOSITION OF KRISTEN METZGER
27Yes. 00:22:44 1 A.And as you were entering into the Planned 00:22:44 2 Q.Parenthood building, you actually heard 00:22:48 3somebody through the fence --00:22:49 4Yes. 00:22:50 5 A.-- who also said, come across the street and 00:22:51 6 Q.talk? 00:22:53 7Yes. 00:22:53 8 A.What time did you leave the Worcester facility 00:22:53 9 Q.that day? 00:22:56 10I'm not sure. 00:22:56 11 A.How long do you think you were there? 00:23:01 12 Q.Maybe two hours. 00:23:03 13 A.So, if you arrived about 9:30, is it fair to 00:23:05 14 Q.say you left about 11:30? 00:23:17 15I'm not exactly sure when we left. 00:23:19 16 A.I want to again direct your attention to 00:23:22 17 Q.Exhibit Number 2, and you see where you placed 00:23:32 18a D next to the driveway? 00:23:35 19Yes. 00:23:39 20 A.And that D represents the driveway entrance 00:23:39 21 Q.into the Planned Parenthood parking lot; 00:23:43 22correct? 00:23:45 23Yes. 00:23:45 24 A.
DEPOSITION OF KRISTEN METZGER
28And the F represents the actual Planned 00:23:46 1 Q.Parenthood facility; correct? 00:23:49 2Yes. 00:23:50 3 A.Can you define the word adjacent for me? 00:23:50 4 Q.Next to. 00:23:55 5 A.Would it be fair to say that it means near, 00:23:57 6 Q.close, next to, adjoining, abutting; is that 00:24:01 7fair? 00:24:06 8Yes. 00:24:06 9 A.Looking at Exhibit Number 2 where you marked 00:24:06 10 Q.an F, is that facility adjacent to the 00:24:13 11driveway that you marked as D? 00:24:17 12It's connected to it. 00:24:19 13 A.How is it connected? 00:24:21 14 Q.Like that (indicating), the driveway leads to 00:24:23 15 A.the entrance. 00:24:30 16Would you say that the facility is near to the 00:24:30 17 Q.driveway, to the driveway entrance? 00:24:35 18What's near? 00:24:39 19 A.Well, I'm asking you to define it, in your 00:24:40 20 Q.opinion? 00:24:43 21
MR. SALINGER: Objection, the witness 00:24:43 22is entitled to know what you mean by the 00:24:45 23question. 00:24:48 24
DEPOSITION OF KRISTEN METZGER
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37Yes. 00:33:16 1 A.Do you know whether or not there were train 00:33:17 2 Q.tracks that are located on the western 00:33:25 3boundary of the medical complex? Do you sort 00:33:28 4of see them on the photograph toward the 00:33:30 5bottom on the left? 00:33:32 6Yes. 00:33:33 7 A.Did you notice those train tracks when you 00:33:33 8 Q.were out there? 00:33:37 9No. 00:33:38 10 A.Do you know whether or not there are train 00:33:38 11 Q.tracks out there? 00:33:41 12I do not -- I did not. 00:33:42 13 A.Do you know today whether or not there are? 00:33:42 14 Q.If those are train tracks. 00:33:45 15 A.But you don't know from personal knowledge? 00:33:47 16 Q.No. 00:33:50 17 A.How long were you at the Springfield facility 00:33:50 18 Q.on September 10 of 2010 -- do you know how 00:33:57 19long you were at the Planned Parenthood 00:34:17 20facility in Springfield on September 10 of 00:34:18 212010? 00:34:21 22I don't know exactly. 00:34:21 23 A.Can you estimate? 00:34:23 24 Q.
DEPOSITION OF KRISTEN METZGER
38Two hours. 00:34:24 1 A.On May 3, 2011, you visited the Planned 00:34:26 2 Q.Parenthood facility at 1055 Commonwealth 00:34:38 3Avenue in Boston; is that correct? 00:34:39 4Correct. 00:34:41 5 A.And you went there with Assistant Attorney 00:34:41 6 Q.General Viator; is that right?00:34:46 7Yes. 00:34:49 8 A.And you arrived there at approximately 00:34:49 9 Q.2:00 p.m.? 00:34:51 10Yes. 00:34:52 11 A.Did you take measurements that day? 00:34:52 12 Q.Yes. 00:34:55 13 A.Did you observe any pro-life advocates that 00:34:55 14 Q.day? 00:35:00 15No. 00:35:01 16 A.Did you observe anybody else around the 00:35:01 17 Q.facility that day? 00:35:04 18Protestors? 00:35:04 19 A.Protestors, demonstrators, counsellors, 00:35:08 20 Q.anybody who --00:35:13 21No. 00:35:13 22 A.You didn't see any signs? 00:35:13 23 Q.No. 00:35:15 24 A.
DEPOSITION OF KRISTEN METZGER
39No one was trying to distribute literature? 00:35:15 1 Q.No. 00:35:19 2 A.Nobody approached you to try to talk to you 00:35:19 3 Q.when you were on the sidewalk? 00:35:22 4No. 00:35:23 5 A.Do you know how long you were there that day? 00:35:23 6 Q.I don't know exactly. It might have been an 00:35:26 7 A.hour. 00:35:29 8About an hour?00:35:29 9 Q.Yes. 00:35:32 10 A.On July 8, you and Investigator Amanda George 00:35:32 11 Q.visited the Springfield Planned Parenthood at 00:35:39 12355 Main Street; is that correct? 00:35:43 13Yes. 00:35:45 14 A.And you got there at about 9:55 a.m.; is that 00:35:45 15 Q.right? 00:35:51 16Yes. 00:35:51 17 A.And when you arrived, you saw two older men at 00:35:51 18 Q.the middle entrance on Main Street; is that 00:35:56 19right? 00:35:58 20Yes. 00:35:58 21 A.And they were standing on the sidewalk outside 00:35:59 22 Q.the buffer zone; correct? 00:36:01 23Correct. 00:36:03 24 A.
DEPOSITION OF KRISTEN METZGER
40And one man was holding a sign that said, 00:36:04 1 Q.abortion hurts women, choose life? 00:36:07 2Yes. 00:36:11 3 A.Now, you also saw one of those men hold up a 00:36:11 4 Q.pamphlet as you drove by; is that correct? 00:36:16 5Yes. 00:36:17 6 A.Did you understand that he was offering you 00:36:17 7 Q.literature? 00:36:21 8It looked like he was just waving at us.00:36:22 9 A.Did he have literature in his hand? 00:36:26 10 Q.Yes. 00:36:28 11 A.Do you think perhaps he might have been trying 00:36:28 12 Q.to offer you literature? 00:36:31 13Yes. 00:36:32 14 A.At about ten o'clock, you entered the driveway 00:36:33 15 Q.on Wason Avenue into the Planned Parenthood 00:36:38 16complex? 00:36:40 17Yes. 00:36:40 18 A.Do you remember which driveway you entered? 00:36:41 19 Q.The one directly in front of the building. 00:36:44 20 A.I'm going to direct your attention again to 00:36:51 21 Q.Exhibit 3, and you've marked where Wason 00:36:53 22Avenue is? 00:37:01 23Yes. 00:37:01 24 A.
DEPOSITION OF KRISTEN METZGER
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41Do you see the two white semicircles or radius 00:37:02 1 Q.arcs on Wason Avenue? 00:37:08 2Yes. 00:37:09 3 A.Did you enter into the driveway most to the 00:37:09 4 Q.left where that arc is? 00:37:13 5Yes. 00:37:14 6 A.By the way, do you see three arcs along Main 00:37:15 7 Q.Street? 00:37:19 8Yes. 00:37:19 9 A.And those arcs come just over the double 00:37:19 10 Q.yellow lines; is that right? 00:37:22 11Yes. 00:37:24 12 A.And when you entered into the driveway at 00:37:24 13 Q.about ten o'clock in front of Planned 00:37:28 14Parenthood, you didn't see anybody there; is 00:37:31 15that right? 00:37:34 16Correct. 00:37:34 17 A.And then you left about ten minutes later; is 00:37:35 18 Q.that right? 00:37:41 19Yes. 00:37:41 20 A.You saw three men standing outside the buffer 00:37:41 21 Q.zone? 00:37:46 22Yes. 00:37:46 23 A.And they were waving at cars that were exiting 00:37:47 24 Q.
DEPOSITION OF KRISTEN METZGER
42the parking lot on Wason Avenue; is that 00:37:51 1right? 00:37:53 2Yes. 00:37:53 3 A.You didn't hear them say anything; did you? 00:37:54 4 Q.No. 00:37:57 5 A.About ten minutes later at 10:19, you saw a 00:37:57 6 Q.man with a framed picture of the Virgin Mary; 00:38:05 7is that right? 00:38:10 8Yes. 00:38:10 9 A.He was outside the buffer zone; wasn't he? 00:38:11 10 Q.Yes. 00:38:13 11 A.And at about 10:24, you drove by the Main 00:38:13 12 Q.Street entrances, and you didn't see anybody 00:38:18 13there; is that right? 00:38:21 14Yes. 00:38:21 15 A.Now, you went into the building that day; 00:38:22 16 Q.right? 00:38:35 17Springfield? 00:38:35 18 A.When you visited Springfield that day on 00:38:36 19 Q.July 8, 2011, did you go up into the Planned 00:38:41 20Parenthood facility? 00:38:45 21No. 00:38:45 22 A.On July 7, you and an investigator, 00:38:45 23 Q.Amanda George, visited the Planned Parenthood 00:39:04 24
DEPOSITION OF KRISTEN METZGER
43facility at 470 Pleasant Street in Worcester; 00:39:07 1is that right? 00:39:10 2Yes. 00:39:10 3 A.You arrived about 9:40 a.m.?00:39:10 4 Q.Yes. 00:39:13 5 A.And when you arrived, you saw about nine 00:39:13 6 Q.people on the sidewalk surrounding the buffer 00:39:19 7zone of Pleasant Avenue? 00:39:19 8Yes. 00:39:19 9 A.Let's look at Exhibit 2. Where exactly did 00:39:20 10 Q.you see these nine folks? 00:39:43 11On the sidewalk on Pleasant Street in front of 00:39:44 12 A.the clinic. 00:39:48 13Could you mark that exhibit with a T where 00:39:48 14 Q.those folks were? 00:40:01 15(Witness complies.)00:40:01 16 A.Were they outside this buffer zone? 00:40:08 17 Q.Yes. 00:40:10 18 A.Could I look at that for just one second? 00:40:11 19 Q.(Witness complies.) 00:40:13 20 A.And you saw one person among the nine who was 00:40:14 21 Q.wearing what we might call a grim reaper 00:40:26 22costume; is that right? 00:40:28 23Yes. 00:40:29 24 A.
DEPOSITION OF KRISTEN METZGER
44The grim reaper is the sign of death; isn't 00:40:29 1 Q.it? 00:40:33 2Yes. 00:40:33 3 A.Also among those nine people was an older man 00:40:34 4 Q.holding a sign that read abortion is a bad 00:40:41 5sin; is that right? 00:40:42 6Yes. 00:40:43 7 A.There was also a fellow in a wheelchair there? 00:40:43 8 Q.Yes. 00:40:47 9 A.And what was he doing; do you recall? 00:40:48 10 Q.Just sitting there. 00:40:50 11 A.And there were two other people next to him; 00:40:52 12 Q.is that right? 00:40:55 13Yes. 00:40:55 14 A.What were they doing? 00:40:55 15 Q.Standing there. 00:40:57 16 A.Doing anything else? 00:40:58 17 Q.Not that I can recall. 00:41:00 18 A.Across the street on the opposite side on the 00:41:02 19 Q.sidewalk were two women and a man; is that 00:41:09 20right? 00:41:15 21Yes. 00:41:15 22 A.And as you drove by in the car, you didn't 00:41:15 23 Q.hear anything; is that right? 00:41:19 24
DEPOSITION OF KRISTEN METZGER
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45Correct. 00:41:21 1 A.Were your windows up or down? 00:41:21 2 Q.I think we rolled them down. 00:41:24 3 A.Do you know whether or not anybody was 00:41:26 4 Q.talking? 00:41:29 5I didn't see them talking. 00:41:29 6 A.But you don't know whether or not somebody was 00:41:31 7 Q.talking? 00:41:34 8Correct.00:41:34 9 A.All you know is you couldn't hear them? 00:41:35 10 Q.Right. 00:41:38 11 A.You also observed an older man standing on the 00:41:41 12 Q.sidewalk across the street from the entrance 00:41:41 13with a sign that says, God loves you mom and 00:41:46 14dad; is that right? 00:41:48 15That was on Dewey Street, yes. 00:41:48 16 A.On Dewey Street? 00:41:51 17 Q.Yes. 00:41:53 18 A.And that man waved to you as you entered the 00:41:53 19 Q.driveway; correct? 00:41:58 20Yes. 00:41:59 21 A.And then you sat in the parking lot for about 00:41:59 22 Q.five or ten minutes; is that correct? 00:42:02 23Correct. 00:42:04 24 A.
DEPOSITION OF KRISTEN METZGER
46Could you mark the exhibit, Exhibit Number 2, 00:42:04 1 Q.with an S where you parked your car in the 00:42:08 2parking lot? 00:42:12 3(Witness complies.) 00:42:13 4 A.May I see that for a moment? 00:42:14 5 Q.(Witness complies.) 00:42:17 6 A.Thank you. I think you might have wrote a D. 00:42:19 7 Q.I see two Ds; is that right? 00:42:25 8I wrote it over here (indicating).00:42:25 9 A.Oh, I'm so sorry.00:42:25 10 Q.I parked closest, in the trees. 00:42:27 11 A.When you were in that parked car, did you hear 00:42:35 12 Q.anything? 00:42:48 13No. 00:42:48 14 A.Do you know whether or not anybody was 00:42:48 15 Q.speaking? 00:42:51 16I do not. 00:42:51 17 A.You then went into the facility about ten 00:42:52 18 Q.o'clock; is that right? 00:42:59 19Yes. 00:42:59 20 A.And when you were inside the facility on the 00:43:00 21 Q.first floor, you couldn't hear anything 00:43:02 22outside? 00:43:06 23Correct.00:43:06 24 A.
DEPOSITION OF KRISTEN METZGER
47So, you didn't hear any of the pro-life 00:43:07 1 Q.advocates saying anything? 00:43:11 2No. 00:43:11 3 A.And then you went up to the second floor; is 00:43:11 4 Q.that right?00:43:13 5Yes. 00:43:13 6 A.And you didn't hear any pro-life individuals 00:43:14 7 Q.say anything while you were up there either; 00:43:14 8right? 00:43:17 9No. 00:43:17 10 A.And you left the facility about 10:20 a.m.; is 00:43:18 11 Q.that right? 00:43:21 12Yes. 00:43:21 13 A.And you stood outside in the front of the 00:43:21 14 Q.facility near the entrance? 00:43:24 15Yes. 00:43:26 16 A.And you were able to hear a woman from across 00:43:26 17 Q.the street say to you, anything you need, we 00:43:31 18can help you, come across the street; is that 00:43:35 19right? 00:43:38 20Yes. 00:43:38 21 A.And then you left at approximately 10:40 a.m.? 00:43:38 22 Q.Yes. 00:43:43 23 A.Did you ever visit any of the three Planned 00:43:44 24 Q.
DEPOSITION OF KRISTEN METZGER
48Parenthoods under discussion other than at the 00:43:53 1times that we discussed this morning? When 00:43:55 2I'm talking about the three, I'm talking about 00:43:58 3the one in Boston on Commonwealth Avenue, the 00:43:58 4one in Springfield on Main Street, and the one 00:44:01 5in Worcester on Pleasant Street? 00:44:04 6No. 00:44:06 7 A.Just to recap, you were at the facility in 00:44:06 8 Q.Boston on April 2, 2010, for about an hour; is 00:44:12 9that fair?00:44:16 10It was probably longer than an hour. 00:44:16 11 A.How long do you think you were there? 00:44:20 12 Q.Two hours. 00:44:22 13 A.And on September 10 when you went to the 00:44:25 14 Q.Worcester facility, you were there for about 00:44:34 15two hours; is that right? 00:44:36 16Yes. 00:44:37 17 A.And that same day you were at the Springfield 00:44:38 18 Q.facility for how long? 00:44:41 19I'd say about two hours. 00:44:42 20 A.And then on May 3, you visited Boston Planned 00:44:45 21 Q.Parenthood to take measurements, and you were 00:45:02 22there for how long? 00:45:05 23An hour. 00:45:07 24 A.
DEPOSITION OF KRISTEN METZGER
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49One hour, and then on July 7 you went to 00:45:08 1 Q.Worcester. You arrived at about 9:40 a.m. we 00:45:21 2said; right? 00:45:26 3Yes. 00:45:26 4 A.And you left about 10:40 a.m.?00:45:26 5 Q.Yes.00:45:26 6 A.So, you were there about an hour? 00:45:27 7 Q.Yes. 00:45:29 8 A.And then on July 8, you went to Springfield. 00:45:29 9 Q.You arrived about 9:55; correct? 00:45:34 10Yes. 00:45:38 11 A.And you left about 10:24; is that right? 00:45:38 12 Q.Yes. 00:45:42 13 A.So, you were there about a half an hour, 40 00:45:42 14 Q.minutes? 00:45:47 15Yes. 00:45:48 16 A.So, in the last three and a half years, is it 00:45:48 17 Q.fair to say that your total observation at all 00:45:55 18three clinics combined is no more than six 00:45:59 19hours? 00:46:05 20Is that what those numbers add up to? 00:46:05 21 A.Let's go over them. I believe you said you 00:46:09 22 Q.were at Planned Parenthood in Boston on 00:46:12 23April 2, 2010, for two hours. You were at 00:46:14 24
DEPOSITION OF KRISTEN METZGER
50Worcester at Planned Parenthood on 00:46:17 1September 10, 2010, for two hours. You were 00:46:17 2at Springfield on September 10, 2010, for two 00:46:21 3hours. 00:46:26 4
On May 3, you went to Boston for an 00:46:28 5hour. My math is wrong, but I'm close. On 00:46:31 6July 7, you went to Worcester for about an 00:46:46 7hour, and then on July 8, you went to 00:46:49 8Springfield for 40 minutes. So, that's two, 00:46:52 9four, six, seven, eight hours and 40 minutes; 00:46:55 10is that fair? 00:46:57 11Yes. 00:46:57 12 A.So, about eight hours and 40 minutes of total 00:46:57 13 Q.observation time in a period of three and a 00:47:02 14half years; is that about right? 00:47:04 15Yes. 00:47:06 16 A.When you went to the clinics to observe, did 00:47:06 17 Q.you go with the intent to focus on particular 00:47:18 18persons? 00:47:21 19No. 00:47:21 20 A.Were you told to focus on particular people? 00:47:21 21 Q.No. 00:47:25 22 A.When you observed people with signs, how far 00:47:25 23 Q.away were you? 00:47:29 24
DEPOSITION OF KRISTEN METZGER
51I don't know. 00:47:30 1 A.You have no idea at all? 00:47:31 2 Q.Which time and when?00:47:35 3 A.Any of the times? 00:47:38 4 Q.
MR. SALINGER: Objection. 00:47:40 5All right, let's do it one at a time. On 00:47:41 6 Q.April 2, 2010, when you went to Planned 00:47:46 7Parenthood in Boston, did you observe people 00:47:50 8with signs? 00:47:53 9Yes. 00:47:54 10 A.Can you tell me how far you were away from 00:47:55 11 Q.those folks when you observed them? 00:47:59 12It probably varied. At times I'd be really 00:48:01 13 A.close to them, and then other times I'd be up 00:48:04 14on the roof or across the street. 00:48:07 15Okay. So, could you give me a range, very 00:48:09 16 Q.close meaning? 00:48:11 17A couple of feet, five feet at the lowest. 00:48:11 18 A.The closest you were was five feet away? 00:48:16 19 Q.Yes. 00:48:20 20 A.And the furthest? 00:48:20 21 Q.I mean, however far away the roof is. I'm not 00:48:22 22 A.sure how tall that building is. 00:48:28 23Do you think it's 50 feet? 00:48:30 24 Q.
DEPOSITION OF KRISTEN METZGER
52MR. SALINGER: Objection. 00:48:33 1MR. DePRIMO: You can answer.00:48:34 2MR. SALINGER: She said she's not 00:48:35 3
sure how tall it is. 00:48:38 4Yeah, I don't know. 00:48:39 5 A.When you saw people holding the signs, could 00:48:39 6 Q.you tell whether they were nice people? 00:48:46 7No. 00:48:48 8 A.Could you tell whether they were gentle? 00:48:48 9 Q.No. 00:48:52 10 A.Could you tell they were loving? 00:48:52 11 Q.No. 00:48:54 12 A.Could you tell whether they were hateful? 00:48:54 13 Q.No. 00:48:57 14 A.It's not possible to know that just by looking 00:48:58 15 Q.at somebody holding a sign; is it?00:49:01 16
MR. SALINGER: Objection. 00:49:05 17MR. DePRIMO: You can answer. 00:49:05 18
It could be, I mean depending on what they 00:49:06 19 A.were doing. 00:49:10 20But when you were there on April 2, you 00:49:11 21 Q.couldn't tell; is that right? 00:49:16 22Correct. 00:49:18 23 A.When it comes to conveying a message, do you 00:49:18 24 Q.
DEPOSITION OF KRISTEN METZGER
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53know whether a sign is more effective than a 00:49:25 1piece of paper? 00:49:29 2What do you mean, like on the street? 00:49:30 3 A.Just generally speaking, but we'll confine it 00:49:34 4 Q.to people say outside of Planned Parenthood. 00:49:38 5Okay.00:49:40 6 A.Do you know whether or not conveying a message 00:49:40 7 Q.through a sign is more effective than through 00:49:43 8a piece of literature that may be handed out? 00:49:47 9I'm not sure. 00:49:50 10 A.You don't know?00:49:51 11 Q.No.00:49:51 12 A.Do you know whether or not a sign is more 00:49:51 13 Q.effective than a face-to-face conversation?00:49:56 14I'm not sure. 00:49:58 15 A.You don't know? 00:50:00 16 Q.No. 00:50:01 17 A.Are you more likely to be persuaded by a 00:50:01 18 Q.person shouting from 35 feet away or by 00:50:06 19somebody who's standing a few feet away from 00:50:10 20you smiling and talking in a normal 00:50:13 21conversational level? 00:50:15 22Are we talking about if I was going into 00:50:16 23 A.Planned Parenthood? 00:50:20 24
DEPOSITION OF KRISTEN METZGER
54I'm just talking generally. 00:50:20 1 Q.I mean, I might see the sign. That might 00:50:21 2 A.catch my attention. 00:50:26 3Well, let's rephrase this. I wasn't talking 00:50:27 4 Q.about a sign. We're not talking about signs. 00:50:31 5We're not talking about literature. I'll 00:50:34 6rephrase the question.00:50:34 7
Are you more likely to be persuaded by a 00:50:35 8person who's shouting at you from 35 feet away 00:50:40 9or by somebody who's standing a few feet from 00:50:43 10you who's smiling at you and talking to you in 00:50:48 11a normal conservational level? 00:50:50 12Persuaded to do what? Because if they were 00:50:54 13 A.shouting at me to get out of the street, then 00:50:54 14I might be persuaded by that. 00:50:59 15Fair enough. If somebody was trying to 00:50:59 16 Q.persuade you to buy a product, is it more 00:51:02 17effective for somebody to yell at you from 35 00:51:06 18feet away or for somebody to talk to you from 00:51:07 19a few feet smiling in a normal conversational 00:51:11 20level? 00:51:14 21I guess smiling and talking. 00:51:14 22 A.Closer is better? 00:51:16 23 Q.
MR. SALINGER: Objection. 00:51:19 24DEPOSITION OF KRISTEN METZGER
55MR. DePRIMO: You can answer. 00:51:21 1
I guess it would depend on how close. 00:51:23 2 A.How close would they need to be?00:51:26 3 Q.
MR. SALINGER: Objection.00:51:30 4You can answer the question. We're talking 00:51:31 5 Q.about you. 00:51:32 6Right.00:51:32 7 A.
MR. SALINGER: We're not talking 00:51:34 8about much of anything actually.00:51:36 9You can answer. 00:51:38 10 Q.So, if someone is trying to sell me something, 00:51:39 11 A.is it better if they're close? I guess yeah. 00:51:42 12If I could see the product they were trying to 00:51:45 13sell me, that would be better. 00:51:46 14Do you know whether or not that's true of 00:51:48 15 Q.other people? 00:51:56 16I do not. 00:51:56 17 A.When you went out to the clinics, and I'm 00:51:57 18 Q.talking about all the clinics all the times 00:52:04 19you were out there, did you observe with an 00:52:07 20intent to distinguish between people who were 00:52:10 21trying to go inside the clinic as opposed to 00:52:14 22people who were just walking along the 00:52:18 23streets? 00:52:20 24
DEPOSITION OF KRISTEN METZGER
56Not really. 00:52:20 1 A.No? 00:52:21 2 Q.No. 00:52:23 3 A.Did anybody instruct you to do that? 00:52:23 4 Q.No. 00:52:26 5 A.Are you, talking you personally, are you more 00:52:27 6 Q.likely to reach out and take a piece of 00:52:33 7literature from someone who places it near 00:52:37 8your hand as you walked by as compared to 00:52:38 9somebody who waves it at you from 35 feet 00:52:42 10away? 00:52:45 11Yes. 00:52:46 12 A.Did you observe any women going into the 00:52:46 13 Q.clinic when you were there? 00:53:01 14Yes. 00:53:03 15 A.How many? 00:53:03 16 Q.I don't know. 00:53:04 17 A.Do you know -- let me withdraw that. Would 00:53:06 18 Q.you like to take a break? 00:53:19 19No.00:53:20 20 A.Now, when you saw these women going into the 00:53:30 21 Q.clinic, did you approach them and ask them 00:53:33 22what methods of communication they would 00:53:35 23prefer to receive? 00:53:39 24
DEPOSITION OF KRISTEN METZGER
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57No. 00:53:40 1 A.So, you don't know whether or not they prefer 00:53:40 2 Q.a sign as compared to a piece of literature as 00:53:40 3compared to normal conversation? 00:53:45 4No. 00:53:47 5 A.Do you customarily converse with your friends 00:53:47 6 Q.from 35 feet away? 00:53:54 7Sometimes I shout at my boyfriend from across 00:53:56 8 A.my apartment. 00:54:01 9I don't know perceptions, but customarily when 00:54:01 10 Q.you converse with friends, how far are you 00:54:05 11away from them? 00:54:06 12Face to face. 00:54:06 13 A.Give me a distance. 00:54:07 14 Q.
MR. SALINGER: Objection. 00:54:10 15A few feet. 00:54:11 16 A.A few feet, so when you're talking to somebody 00:54:14 17 Q.generally from a conversational distance, that 00:54:20 18conversational distance is about two feet; is 00:54:23 19that right?00:54:23 20
MR. SALINGER: The Witness said a few 00:54:23 21feet. 00:54:28 22How do you define a few feet? 00:54:28 23 Q.Two to three feet. 00:54:30 24 A.
DEPOSITION OF KRISTEN METZGER
58You went inside the various Planned Parenthood 00:54:35 1 Q.clinics; is that correct? 00:54:43 2Correct. 00:54:44 3 A.Inside the facility? 00:54:45 4 Q.Yes. 00:54:46 5 A.Did you ever talk to anybody from a distance 00:54:47 6 Q.of 35 feet or more when you were inside the 00:54:47 7clinic? 00:54:50 8No. 00:54:50 9 A.Did you ever see anybody else talking from a 00:54:51 10 Q.distance of 35 feet or more inside the 00:54:54 11facility? 00:54:57 12No. 00:54:57 13 A.During your investigations in Springfield and 00:54:57 14 Q.Worcester, how many people did you observe 00:55:04 15pull into the Planned Parenthood park lots, 00:55:08 16park their car, and then walk back to pro-life 00:55:11 17advocates who were on the sidewalk? 00:55:15 18None. 00:55:17 19 A.Would you agree that it's easier for someone 00:55:18 20 Q.to simply -- I'll withdraw that question. As 00:55:27 21somebody is approaching the clinic driveway in 00:55:28 22a motor vehicle, is it easier for them to 00:55:31 23simply pause briefly at the edge of the 00:55:35 24
DEPOSITION OF KRISTEN METZGER
59driveway, roll down their window, take a piece 00:55:40 1of paper from somebody offering it as compared 00:55:43 2to pulling all the way into the parking lot 00:55:48 3and then return to walk to the sidewalk to get 00:55:50 4that piece of paper? 00:55:52 5
MR. SALINGER: Objection. 00:55:54 6Do you understand the question? 00:55:55 7 Q.Yes. 00:55:56 8 A.What's your answer?00:55:56 9 Q.Yeah, I guess that would be easier.00:55:56 10 A.It's easier to simply roll down your window 00:55:57 11 Q.and take a piece of paper; correct? 00:56:00 12Yes. 00:56:02 13 A.It takes much more effort to walk back to the 00:56:03 14 Q.sidewalk area; correct? 00:56:07 15Yes, for some people. 00:56:08 16 A.Correct me if I'm wrong, but your memo 00:56:11 17 Q.described your observations as observing 00:56:18 18right-to-life protesters; do you recall that? 00:56:21 19Yes. 00:56:24 20 A.Who gave you that task? 00:56:24 21 Q.To observe them? 00:56:28 22 A.Yes?00:56:29 23 Q.AG Viator. 00:56:30 24 A.
DEPOSITION OF KRISTEN METZGER
60Were your told to observe anybody else? 00:56:32 1 Q.Probably the women that were going into the 00:56:35 2 A.clinic. 00:56:37 3Did you observe anybody else other than the 00:56:38 4 Q.women going into the clinic and the pro-life 00:56:42 5advocates? 00:56:43 6There might have been other people just 00:56:43 7 A.walking down on the street. 00:56:46 8Just sort of walking along the public 00:56:47 9 Q.sidewalk -- 00:56:50 10Yes. 00:56:50 11 A.-- going from point A to point B --00:56:50 12 Q.Yes.00:56:50 13 A.-- having nothing to do with the clinic? 00:56:51 14 Q.Right. 00:56:54 15 A.Did you see anybody else talking about any 00:56:55 16 Q.other issues while you were out there? 00:56:58 17No. 00:57:01 18 A.Did you see any pro-choice people when you 00:57:01 19 Q.were out at the clinics? 00:57:05 20No. 00:57:06 21 A.In one of your reports, correct me if I'm 00:57:07 22 Q.wrong, you put the word counsellors in 00:57:14 23quotation marks; do you recall that? 00:57:18 24
DEPOSITION OF KRISTEN METZGER
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61Yes. 00:57:19 1 A.You were speaking about pro-life counsellors? 00:57:19 2 Q.Right. 00:57:21 3 A.When you use the word protestors in your 00:57:21 4 Q.reports, you didn't put those in quotation 00:57:25 5marks; is that right? 00:57:28 6Yes. 00:57:28 7 A.That's correct; right?00:57:29 8 Q.Yes.00:57:29 9 A.Why did you put the word counsellors in 00:57:29 10 Q.quotation marks and not the word protestors in 00:57:33 11quotation marks? 00:57:36 12I guess I didn't know how to define what they 00:57:37 13 A.were, and they seemed -- you know, it just 00:57:41 14looked like they were counselling her is what 00:57:45 15it looked like. 00:57:48 16And when you say her, you're talking about the 00:57:49 17 Q.young Hispanic woman or others? 00:57:51 18Yes, the young Hispanic woman. 00:57:53 19 A.Let's talk about that young Hispanic woman a 00:57:56 20 Q.little bit. Do you recall using the word 00:58:03 21responsive to describe how that young Hispanic 00:58:05 22woman was reacting to the three women talking 00:58:10 23to her? 00:58:12 24
DEPOSITION OF KRISTEN METZGER
62Yes. 00:58:12 1 A.How do you know she was responsive? 00:58:12 2 Q.She wasn't walking away from them. She was 00:58:14 3 A.accepting the literature. 00:58:19 4Anything else? 00:58:20 5 Q.She seemed like she was listening to what they 00:58:21 6 A.were saying. 00:58:25 7You don't describe anybody else that you saw 00:58:25 8 Q.at Planned Parenthood in Boston that day as 00:58:28 9being responsive; is that right? 00:58:31 10Right. 00:58:33 11 A.Is that because you didn't observe anybody 00:58:33 12 Q.else being responsive? 00:58:37 13Yeah, I guess so, yeah. 00:58:38 14 A.Did you use the term responsive in any of your 00:58:40 15 Q.memos to describe any other patrons? 00:58:44 16No. 00:58:48 17 A.So, you only saw one person during your entire 00:58:48 18 Q.investigation of the Planned Parenthood who 00:58:53 19was responsive to a pro-life individual? 00:58:56 20That I saw, yeah. 00:58:59 21 A.You saw people holding pro-life signs when you 00:59:01 22 Q.went to the various clinics on the various 00:59:11 23days; right? 00:59:14 24
DEPOSITION OF KRISTEN METZGER
63Right. 00:59:14 1 A.But you didn't observe anyone being responsive 00:59:15 2 Q.to those signs; did you? 00:59:18 3No. 00:59:20 4 A.Everybody just kind of walked on by; is that 00:59:21 5 Q.right? 00:59:28 6Yes. 00:59:28 7 A.Were the women speaking to the Hispanic woman 00:59:28 8 Q.speaking through a megaphone? 00:59:50 9No. 00:59:51 10 A.Or a microphone? 00:59:51 11 Q.No. 00:59:53 12 A.Were they shouting? 00:59:53 13 Q.No. 00:59:55 14 A.They were speaking at very close range; 00:59:56 15 Q.weren't they? 00:59:58 16Yes. 00:59:58 17 A.They were close enough to make eye contact; 00:59:59 18 Q.weren't they? 01:00:02 19Yes. 01:00:02 20 A.So, based on the visits that you made to three 01:00:03 21 Q.clinics, you saw people try to express a 01:00:09 22pro-life message through signs, through 01:00:12 23prayers, through shouts, and through the 01:00:16 24
DEPOSITION OF KRISTEN METZGER
64offering of literature; is that right?01:00:19 1Yes. 01:00:21 2 A.But the only time you saw anybody responsive 01:00:21 3 Q.was that one time on April 2, 2010, when that 01:00:24 4Hispanic woman was responsive to the three 01:00:29 5woman whom you described as counselling her; 01:00:32 6is that right? 01:00:35 7Yes. 01:00:36 8 A.In your April 2, 2010, report, you said that 01:00:36 9 Q.you heard a group of people praying; is that 01:00:45 10right? 01:00:48 11Yes. 01:00:48 12 A.And there were about 75 people there? 01:00:49 13 Q.Yes. 01:00:51 14 A.It's not hard to hear 75 people who were 01:00:52 15 Q.praying in unison; is it? 01:00:57 16I guess not. 01:00:58 17 A.
MR. DePRIMO: I'd like to mark a 01:01:06 18couple of photographs here. 01:01:07 19
I'm handling you what's been marked as 01:01:43 22 Q.Exhibit 4 for your deposition. Can you take a 01:01:47 23look at that for me? 01:01:49 24
DEPOSITION OF KRISTEN METZGER
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73Yes.01:21:26 1 A.Could you tell us a little bit more about the 01:21:26 2 Q.group of 35 people or so that he was asking 01:21:30 3you questions about; what did you observe 01:21:32 4about that group? 01:21:35 5So, it was men and women. There was children 01:21:35 6 A.there, and they all had prayer books, and they 01:21:38 7were praying, and they were singing at times, 01:21:42 8and when we first arrived, we came up Alcorn 01:21:45 9Street, and we did walk into the clinic. 01:21:50 10
So, when we were walking on Comm. Ave., 01:21:53 11people actually talked to us or they shouted, 01:21:55 12and I think it was us or, you know, it could 01:21:58 13have been at other people, but they said your 01:22:01 14baby has a heartbeat and, you know, abortion 01:22:02 15is forever, and that's when I could see, you 01:22:07 16know, the baby coffin. 01:22:10 17
I saw the giant cross in the front, and 01:22:13 18then there was also a crucifix and all the 01:22:16 19various signs, and we saw them in different 01:22:22 20angles on Alcorn Street, on Comm. Ave. We 01:22:28 21crossed the street on Comm. Ave., you know, on 01:22:32 22the train tracks and observed, and then, you 01:22:34 23know, observed on the roof as well. 01:22:36 24
DEPOSITION OF KRISTEN METZGER
74You took some pictures while you were there? 01:22:38 1 Q.Yes. 01:22:41 2 A.
MR. DePRIMO: Would you mark this as, 01:22:43 3I think we're up to Exhibit 6. 01:22:53 4
Is this one of the pictures you took of that 01:22:53 7 Q.group on that day? 01:22:57 8
(Shown to the Witness.)01:22:58 9Yes. 01:22:58 10 A.Where were you standing when you took this 01:22:59 11 Q.photo? 01:23:03 12I was across the street on Comm. Ave. 01:23:03 13 A.Over by the train tracks? 01:23:07 14 Q.By the train trains. 01:23:08 15 A.So, the building that we're looking at is the 01:23:10 16 Q.Planned Parenthood clinic; right?01:23:12 17Yes. 01:23:13 18 A.We can see the Planned Parenthood sign; right? 01:23:14 19 Q.Yes. 01:23:16 20 A.The large cross that you referred to, do you 01:23:16 21 Q.see that in this photo? 01:23:20 22Yes. 01:23:22 23 A.That's off to the left side of the photo? 01:23:22 24 Q.
DEPOSITION OF KRISTEN METZGER
75Oh, yes.01:23:25 1 A.And you also said that you observed somebody 01:23:31 2 Q.holding up a sizable crucifix. Do we see that 01:23:32 3in this picture? 01:23:37 4Yes. 01:23:37 5 A.Where is that? 01:23:37 6 Q.The man in the red is holding it. 01:23:38 7 A.The red jacket with white hair? 01:23:41 8 Q.Yes. 01:23:44 9 A.
MR. SALINGER: If you could mark this 01:23:44 10photo as Exhibit 7.01:23:44 11
Did you take this photo on that same morning? 01:24:10 14 Q.(Shown to the Witness.) 01:24:13 15
Yes. 01:24:13 16 A.Where were you standing when you took this 01:24:13 17 Q.photo? 01:24:16 18I think I was on Alcorn Street -- or I was on 01:24:16 19 A.Alcorn Street either in the street or on the 01:24:22 20sidewalk.01:24:24 21And we're looking up the Commonwealth Avenue 01:24:24 22 Q.sidewalk toward Downtown Boston; is that 01:24:27 23right? 01:24:30 24
DEPOSITION OF KRISTEN METZGER
76Yes.01:24:30 1 A.The clinic building is to the left on this 01:24:31 2 Q.photo?01:24:31 3Yes.01:24:31 4 A.And we can see the group arrayed in front of 01:24:34 5 Q.you and to your right; is that correct? 01:24:37 6Yes. 01:24:39 7 A.So, there's that large cross that you referred 01:24:39 8 Q.to; is that right? 01:24:42 9Yes. 01:24:43 10 A.The gentleman who's supporting the cross 01:24:43 11 Q.there, is he standing just outside the buffer 01:24:48 12zone line? 01:24:51 13Yes. 01:24:51 14 A.On the sidewalk? 01:24:52 15 Q.Yes. 01:24:53 16 A.And between that gentleman and where you're 01:24:53 17 Q.standing, there's at least one other person 01:24:59 18standing on the sidewalk and outside the 01:25:02 19buffer zone; is that right? 01:25:04 20Yes. 01:25:06 21 A.You had referred to a baby's coffin. Can we 01:25:06 22 Q.see that on the right side on this photo as 01:25:12 23well? 01:25:15 24
DEPOSITION OF KRISTEN METZGER
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77Yes. 01:25:15 1 A.And you had described in response to 01:25:15 2 Q.Mr. DePrimo's questions that people were 01:25:18 3holding signs that day. Can we see some of 01:25:21 4the signs in this photo? 01:25:25 5Yes. 01:25:26 6 A.Including signs that are on the other side of 01:25:26 7 Q.the buffer zone further along the Comm. Ave. 01:25:29 8sidewalk; is that right? 01:25:33 9Yes. 01:25:34 10 A.Can you read these signs? 01:25:34 11 Q.Yes. 01:25:36 12 A.Could you read them that day when you were 01:25:36 13 Q.standing in that spot? 01:25:40 14Yes. 01:25:41 15 A.What did those signs say? 01:25:41 16 Q.Abortion exploits woman, it's a baby not a 01:25:42 17 A.choice. 01:25:47 18Thank you. And Mr. DePrimo asked you about 01:25:47 19 Q.another sign you saw that day, a gentleman 01:25:52 20holding a sign saying they're killing babies 01:25:55 21here; do you recall that? 01:25:58 22Yes. 01:25:58 23 A.Is this a photo you took of that sign? 01:25:59 24 Q.
DEPOSITION OF KRISTEN METZGER
78(Shown to the Witness.) 01:26:03 1
Yes. 01:26:03 2 A.MR. SALINGER: Let's have that marked 01:26:03 3
as the next exhibit.01:26:03 4(Exhibit No. 8 marked01:26:03 5for Identification.) 01:26:22 6
Can you describe the location of where you 01:26:22 7 Q.were and what this photo depicts?01:26:29 8
(Shown to the Witness.)01:26:31 9I would be on Alcorn Street taking a picture 01:26:31 10 A.looking at Commonwealth Ave., and then the 01:26:35 11clinic is on your left. 01:26:38 12So, this is the corner of the clinic building? 01:26:40 13 Q.Yes. 01:26:43 14 A.And the curb there is basically at the corner 01:26:43 15 Q.of Alcorn and Comm. Ave.; right? 01:26:47 16Yes. 01:26:50 17 A.In addition to the gentleman holding the sign 01:26:50 18 Q.that says twice they're killing babies here, 01:26:53 19there are three other gentlemen depicted in 01:26:58 20that photo; is that right? 01:27:01 21Yes. 01:27:01 22 A.What were they doing? 01:27:01 23 Q.They were praying and singing. 01:27:03 24 A.
DEPOSITION OF KRISTEN METZGER
79Were they standing outside the buffer zone? 01:27:05 1 Q.Yes. 01:27:08 2 A.And are they immediately in front of the 01:27:09 3 Q.clinic entrance? 01:27:11 4Yes. 01:27:13 5 A.
MR. SALINGER: I'd like to have that 01:27:13 6marked as the next exhibit.01:27:13 7
Is this another photo that you took that 01:27:41 10 Q.morning? 01:27:47 11
(Shown to the Witness.) 01:27:47 12Yes. 01:27:47 13 A.Mr. DePrimo asked you about observations you 01:27:48 14 Q.made of a young Hispanic woman who spoke with 01:27:52 15three counsellors. Is that part of what's 01:27:56 16depicted in this photo? 01:27:59 17Yes. 01:28:00 18 A.So, tell me what this photo is; what's going 01:28:01 19 Q.on in this picture? 01:28:05 20The woman, the Hispanic woman, I think was 01:28:08 21 A.going into the clinic walking down 01:28:10 22Commonwealth Ave., and these three women 01:28:13 23approached her, and they handed her the 01:28:16 24
DEPOSITION OF KRISTEN METZGER
80literature that she's holding and, you know, 01:28:18 1it looks like they're counselling her. 01:28:21 2The three women who approached her, had you 01:28:23 3 Q.noticed them earlier that day? 01:28:27 4Yes. 01:28:28 5 A.What had you observed them doing earlier that 01:28:29 6 Q.day? 01:28:32 7I saw them handing out pamphlets to other 01:28:32 8 A.people, and they're the women that were 01:28:37 9telling us that our baby has a heartbeat. 01:28:38 10Did you see either them approach the Hispanic 01:28:44 11 Q.woman or the Hispanic woman approach them? 01:28:50 12I think they approached her. 01:28:53 13 A.As she was walking down the sidewalk? 01:28:55 14 Q.Yes. 01:28:57 15 A.And this is a photo of the four of them 01:28:58 16 Q.talking? 01:29:01 17Yes. 01:29:01 18 A.Could you tell us what else you observed that 01:29:02 19 Q.morning regarding the interactions between 01:29:07 20this Hispanic woman and any of these three 01:29:10 21women in the photo? 01:29:14 22I mean, they talked to her for approximately 01:29:15 23 A.30 minutes, and then when we were on the roof, 01:29:18 24
DEPOSITION OF KRISTEN METZGER
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I saw them actually lead her across the 01:29:21 1street, and one of them I guess their car was 01:29:24 2parked across the street on Commonwealth Ave. 01:29:27 3One of them got in the driver's side. 01:29:28 4
Another of the women got into the 01:29:31 5passenger seat, and then the Hispanic woman 01:29:34 6got into the backseat, and then they drove off 01:29:39 7down Commonwealth Ave. 01:29:41 8Where were you when you observed that happen? 01:29:42 9 Q.I was on the roof. 01:29:45 10 A.Of the clinic? 01:29:46 11 Q.Of the clinic, yes. 01:29:48 12 A.Now, in this photo, Exhibit 9, this group of 01:29:48 13 Q.four they're standing on a sidewalk located 01:29:52 14where? 01:29:56 15On the corner of Alcorn Street and 01:29:56 16 A.Commonwealth Ave. 01:30:00 17So, this is across Alcorn Street from where 01:30:00 18 Q.the clinic is? 01:30:04 19Yes. 01:30:05 20 A.In front of the Star Market we can see; right? 01:30:06 21 Q.Yes. 01:30:09 22 A.And with the orientation of this photo, the 01:30:09 23 Q.clinic would be to the right on the other side 01:30:12 24
DEPOSITION OF KRISTEN METZGER
82
of Alcorn? 01:30:15 1Yes. 01:30:15 2 A.There's pink something being displayed in the 01:30:15 3 Q.sign. What was that? 01:30:20 4That sign said choose life. 01:30:20 5 A.You said the young Hispanic woman and the 01:30:23 6 Q.other three women spoke with each other for 01:30:29 7about 30 minutes. Were they roughly at this 01:30:33 8location that whole time? 01:30:35 9Yes. 01:30:37 10 A.You said that you had observed these women 01:30:37 11 Q.handing out pamphlets earlier in the morning. 01:30:47 12Did you have any other observations about 01:30:51 13people handing out pamphlets that day? 01:30:55 14Yes. 01:30:58 15 A.Tell us about that. 01:30:58 16 Q.When I was leaving the clinic, I was exiting, 01:30:59 17 A.and I was walking down Commonwealth Ave., and 01:31:04 18one of the protesters handed me a small 01:31:07 19pamphlet. 01:31:11 20Is this sheet a photocopy of that small 01:31:12 21 Q.pamphlet?01:31:12 22
(Shown to the Witness.)01:31:16 23Yes. 01:31:16 24 A.
DEPOSITION OF KRISTEN METZGER
83
It was a two-sided pamphlet that was handed to 01:31:17 1 Q.you? 01:31:19 2Yes. 01:31:19 3 A.
MR. SALINGER: Let's have what you've 01:31:19 4just identified marked as Exhibit 10. 01:31:21 5
Could you explain in a little more detail, you 01:31:44 8 Q.were leaving the clinic, so you came out the 01:31:47 9front door and you did what; you turned left; 01:31:50 10you turned right? 01:31:53 11Turned left.01:31:54 12 A.So, you turned left. You're walking toward 01:31:55 13 Q.Downtown Boston? 01:31:57 14Yes. 01:31:57 15 A.And what did somebody have to do or what did 01:31:58 16 Q.somebody do in order to get this pamphlet into 01:32:01 17your hands? 01:32:04 18They just reached out their hands and held it 01:32:04 19 A.out for me. 01:32:07 20As you walked down the sidewalk? 01:32:07 21 Q.Yes. 01:32:10 22 A.Did they speak to you as well? 01:32:11 23 Q.Not that I can remember. 01:32:13 24 A.
DEPOSITION OF KRISTEN METZGER
84
Mr. DePrimo had you confirm that you were 01:32:15 1 Q.returned to the Boston clinic a second time in 01:32:24 2May of this year; correct? 01:32:28 3Yes. 01:32:29 4 A.You took some more photos at that point in 01:32:29 5 Q.time; is that right? 01:32:34 6Yes. 01:32:34 7 A.
MR. SALINGER: I'd like to have this 01:32:34 8photo marked as Exhibit 11. 01:32:56 9
Is this one of the photos that you took when 01:32:57 12 Q.you went back to the Boston clinic in May of 01:32:59 13this year?01:33:02 14
(Shown to the Witness.)01:33:03 15Yes. 01:33:03 16 A.Where were you when you took this photo? 01:33:03 17 Q.On the roof of the clinic. 01:33:06 18 A.So, we're looking straight down at the 01:33:07 19 Q.sidewalk next to Commonwealth Avenue? 01:33:09 20Yes. 01:33:11 21 A.This is immediately in front of the clinic 01:33:11 22 Q.entrance? 01:33:15 23Yes. 01:33:15 24 A.
DEPOSITION OF KRISTEN METZGER
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85Is the buffer zone or part of the buffer zone 01:33:15 1 Q.line depicted in this photo? 01:33:20 2Yes. 01:33:22 3 A.It's the curving yellow line? 01:33:22 4 Q.Yes. 01:33:24 5 A.And so, the portion of -- well, I represent 01:33:25 6 Q.like a straight out at the top of the arc, 01:33:29 7that's the part that's directly opposite the 01:33:33 8clinic entrance; is that right? 01:33:35 9Yes. 01:33:36 10 A.And then it curves in towards the building on 01:33:36 11 Q.the left of the photo; correct? 01:33:40 12Yes. 01:33:41 13 A.So, we can see space between the buffer zone 01:33:41 14 Q.line and the edge of the sidewalk there; 01:33:44 15correct? 01:33:46 16Yes. 01:33:46 17 A.And also curves in as we go to the right side 01:33:46 18 Q.of the photo; correct? 01:33:50 19Yes. 01:33:51 20 A.And there's space where people can stand 01:33:51 21 Q.between that buffer zone line and the edge of 01:33:55 22the sidewalk there as well? 01:33:57 23Yes. 01:33:58 24 A.
DEPOSITION OF KRISTEN METZGER
86And when you were at the Boston clinic back in 01:33:59 1 Q.April of 2010, I think you already explained 01:34:02 2you saw people standing in pretty much all of 01:34:06 3those places between the edge of the buffer 01:34:10 4zone and the edge of the sidewalk; is that 01:34:12 5right? 01:34:14 6Yes. 01:34:14 7 A.And the people standing there that day were 01:34:14 8 Q.engaged in prayer or pro-life advocacy? 01:34:17 9Yes. 01:34:22 10 A.Let us turn our attention to your visits to 01:34:22 11 Q.the Planned Parenthood clinic in Worcester. 01:34:34 12You explained to Mr. DePrimo what happened 01:34:41 13when you first arrived and you pulled into the 01:34:45 14neighboring driveway; do you recall that? 01:34:48 15Yes. 01:34:50 16 A.I think you said that one of the women who was 01:34:50 17 Q.speaking with you wanted you to go to Problem 01:34:54 18Pregnancy; is that right? 01:34:59 19Yes. 01:34:59 20 A.What did you understand Problem Pregnancy to 01:34:59 21 Q.be? 01:35:02 22I know that they are across the street, and 01:35:02 23 A.they are pro-life. I think it might be 01:35:07 24
DEPOSITION OF KRISTEN METZGER
87Christian-based, but they usually get people 01:35:13 1over there that they think might be going to 01:35:17 2Planned Parenthood, and I know perform 01:35:20 3ultrasounds there, but they do not perform 01:35:21 4abortions, and they usually, you know, counsel 01:35:24 5women who are thinking about getting 01:35:26 6abortions. 01:35:29 7You told Mr. DePrimo that you and the person 01:35:29 8 Q.you were with that day were handed a number of 01:35:35 9different pamphlets; is that right? 01:35:38 10Yes. 01:35:40 11 A.I'm going to show you what was marked in a 01:35:40 12 Q.previous deposition as Clark Exhibit Number 1. 01:35:43 13Is that one of the pamphlets you were handed 01:35:45 14that morning when you were in your car?01:35:49 15
(Shown to the Witness.)01:35:50 16Yes. 01:35:50 17 A.And here's something that's been marked as 01:35:51 18 Q.Clark Exhibit 2. Is that another bit of 01:35:53 19literature you were handed when you were in 01:35:58 20your car that morning? 01:36:00 21
(Shown to the Witness.)01:36:01 22Yes. 01:36:01 23 A.
MR. SALINGER: Would you mark this as 01:36:01 24DEPOSITION OF KRISTEN METZGER
Do you recognize what's been marked as 01:36:36 4 Q.Exhibit 12? 01:36:41 5
(Shown to the Witness.) 01:36:41 6Yes. 01:36:42 7 A.What is that? 01:36:42 8 Q.Another pamphlet that they handed me. 01:36:43 9 A.On that same day in Worcester? 01:36:46 10 Q.Yes. 01:36:48 11 A.Right next to the Planned Parenthood clinic in 01:36:48 12 Q.Worcester?01:36:52 13Yes. 01:36:53 14 A.
MR. SALINGER: Would you mark this as 01:36:53 15Exhibit 13. 01:37:20 16
What is Exhibit 13? 01:37:21 19 Q.(Shown to the Witness.) 01:37:23 20
This is another leaflet that they handed me. 01:37:24 21 A.At the same time? 01:37:27 22 Q.Yes. 01:37:28 23 A.And this is a pamphlet that is for Problem 01:37:28 24 Q.
DEPOSITION OF KRISTEN METZGER
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89Pregnancy of Worcester, Incorporated; is that 01:37:33 1right? 01:37:36 2Yes. 01:37:36 3 A.In asking you questions about your visit to 01:37:36 4 Q.the Worcester clinic, Mr. DePrimo had you look 01:37:55 5at Exhibit Number 2. Let's turn back to that. 01:37:59 6He asked you some questions about whether or 01:38:04 7not the driveway that leads up to the Planned 01:38:06 8Parenthood clinic entrance is adjacent to or 01:38:10 9near the clinic. 01:38:14 10
Can you just describe in words for the 01:38:16 11record how it is that the driveway leads from 01:38:18 12Dewey Street to the clinic entrance? 01:38:21 13So, you would pull into the entrance off of 01:38:24 14 A.Dewey Street, and then you'd take another 01:38:28 15left, and that would lead you directly to the 01:38:31 16entrance of the facility. 01:38:35 17So, if you're coming by car, and you're trying 01:38:36 18 Q.to park as close as possible to the actual 01:38:40 19building entrance, you would drive in off of 01:38:45 20Dewey Street and follow the drive around to 01:38:48 21the left and park in one of those spots; 01:38:52 22right? 01:38:55 23Yes. 01:38:55 24 A.
DEPOSITION OF KRISTEN METZGER
90Mr. DePrimo asked you some questions about 01:38:55 1 Q.your second visit to the Worcester clinic in 01:39:08 2July of this year. He asked about you 01:39:12 3observing a gentleman who dresses himself up 01:39:15 4as the grim reaper. Is that a photo you took 01:39:18 5that day of the grim reaper gentleman? 01:39:22 6
(Shown to the Witness.) 01:39:25 7Yes. 01:39:25 8 A.
MR. SALINGER: Let's mark that as the 01:39:26 9next exhibit? 01:39:47 10
Where did you take this photo from?01:39:48 13 Q.(Shown to the Witness.)01:39:50 14
This is from inside the clinic on the second 01:39:50 15 A.floor. 01:39:53 16What's the street we're looking on here? 01:39:54 17 Q.Pleasant Street. 01:39:56 18 A.What did you observe the grim reaper character 01:39:58 19 Q.doing that day? 01:40:01 20Well, he's wearing dark clothes and a mask and 01:40:02 21 A.has a scythe, and he was just kind of walking 01:40:08 22around on Pleasant, on Pleasant Ave., 01:40:11 23Pleasant Ave. or Pleasant Street.01:40:15 24
DEPOSITION OF KRISTEN METZGER
91That's a good question. Let's call it 01:40:18 1 Q.Pleasant Street for now. 01:40:22 2
MR. DePRIMO: Street.01:40:23 3MR. SALINGER: Thank you.01:40:23 4
Pleasant Street sidewalk. 01:40:23 5 A.And Mr. DePrimo asked you about a sign you saw 01:40:26 6 Q.a gentleman holding that said God loves you, 01:40:33 7mom and dad. Did you take a picture of that? 01:40:37 8Yes. 01:40:40 9 A.Is this at least one of the pictures you took?01:40:40 10 Q.
(Shown to the Witness.) 01:40:44 11Yes. 01:40:44 12 A.
MR. SALINGER: We'll mark that as the 01:40:44 13next exhibit. 01:41:07 14
Where were you when you took this photo? 01:41:08 17 Q.I was in the parking lot. 01:41:11 18 A.The clinic parking lot? 01:41:13 19 Q.Yes. 01:41:15 20 A.And the gentleman holding the sign that said 01:41:15 21 Q.God loves you, mom and dad, and the woman 01:41:22 22standing next to him, where are they standing? 01:41:24 23They're on Dewey Ave. on the sidewalk. 01:41:27 24 A.
DEPOSITION OF KRISTEN METZGER
92The white line immediately in front of them, 01:41:31 1 Q.is that the buffer zone line? 01:41:34 2Yes. 01:41:36 3 A.So, they were on the other side of Dewey Ave. 01:41:36 4 Q.from the entrance to the clinic driveway? 01:41:40 5Yes. 01:41:43 6 A.And you testified before that you have driven 01:41:43 7 Q.your car on Pleasant Street down Dewey Ave., 01:41:46 8and taken this left into this driveway; 01:41:51 9correct? 01:41:53 10Yes. 01:41:53 11 A.When you do that, how close is the passenger 01:41:53 12 Q.door to where these two people were standing? 01:41:57 13It's pretty close, because I'd be on the 01:42:01 14 A.right-hand side of the street, and then they 01:42:06 15were right there on the sidewalk, so a couple 01:42:08 16of feet. 01:42:12 17So, if somebody was in their car, stopped 01:42:12 18 Q.their car there, would it be easy enough for 01:42:16 19somebody on the edge of the buffer zone to 01:42:20 20hand them a pamphlet or talk to them? 01:42:23 21Yes. 01:42:25 22 A.If somebody in their car didn't want to have 01:42:25 23 Q.that communication, they'd be free to just 01:42:25 24
DEPOSITION OF KRISTEN METZGER
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93drive on in and park; right? 01:42:30 1Yes. 01:42:31 2 A.Just a few more questions at this time about 01:42:32 3 Q.your visit to the Planned Parenthood clinic in 01:42:51 4Springfield. First another photo.01:42:55 5
MR. SALINGER: Let's mark this as 01:42:58 6Exhibit 16. 01:42:59 7
Ms. Metzger, did you take this photo on 01:43:16 10 Q.September 10, 2010? 01:43:19 11
(Shown to the Witness.) 01:43:21 12Yes. 01:43:21 13 A.Where were you standing, and what does the 01:43:22 14 Q.photo show us? 01:43:24 15I was standing at the entrance of the building 01:43:25 16 A.that the clinic is in, and it shows us the 01:43:29 17parking lot, and that is Boston Avenue in 01:43:33 18front. 01:43:37 19So, the building we're looking across at, 01:43:37 20 Q.that's on the other side of Wason Ave.? 01:43:40 21Yes. 01:43:43 22 A.This is the parking lot that's closest to the 01:43:44 23 Q.building entrance that leads up to the clinic; 01:43:49 24
DEPOSITION OF KRISTEN METZGER
94is that right? 01:43:53 1Yes. 01:43:53 2 A.Where in this photo is the driveway that 01:43:54 3 Q.connects the parking lot to Wason Ave.? 01:43:59 4It's to the left of this picture. 01:44:02 5 A.So, the paved area at the far left of the 01:44:05 6 Q.photo, that's the driveway that leads out to 01:44:10 7Wason Avenue? 01:44:13 8Yes. 01:44:14 9 A.And finally, Mr. DePrimo asked you about 01:44:14 10 Q.observations you made on July 8 of this year 01:44:25 11near the Springfield clinic where you saw some 01:44:30 12gentlemen, one of whom was holding a sign 01:44:35 13saying abortion hurts women, choose life; do 01:44:37 14you recall that? 01:44:42 15Yes. 01:44:42 16 A.
MR. SALINGER: Mark this as 01:44:43 17Exhibit 17, please. 01:45:01 18
Did you take this photo?01:45:02 21 Q.(Shown to the Witness.)01:45:04 22
Yes. 01:45:04 23 A.Where were you standing when you took it, and 01:45:04 24 Q.
DEPOSITION OF KRISTEN METZGER
95what does the photo show us? 01:45:08 1I was across the street from the building that 01:45:09 2 A.houses the clinic on Wason Avenue. I was in a 01:45:13 3parking lot, and those are three protesters 01:45:17 4that were there that day, and they were 01:45:22 5outside of the buffer zone, and they were 01:45:25 6holding those signs, and there were also some 01:45:27 7other signs on the lawn leading up against the 01:45:30 8guardrail. 01:45:34 9So, the road we can see that's Wason Ave.? 01:45:34 10 Q.Yes. 01:45:36 11 A.If you were driving into the parking lot the 01:45:36 12 Q.entrance nearest to the clinic, the one we 01:45:39 13just saw in the last photo, you'd be driving 01:45:42 14down Wason Avenue from right to left in this 01:45:46 15photo; is that correct? 01:45:50 16Yes. 01:45:50 17 A.And the entrance, the driveway entrance to the 01:45:50 18 Q.parking lot is basically immediately behind 01:45:52 19this Dodge four-by-four that we see in the 01:45:55 20photo? 01:45:58 21Yes. 01:45:58 22 A.So, are these three gentlemen standing pretty 01:45:59 23 Q.much on the edge of the buffer zone? 01:46:02 24
DEPOSITION OF KRISTEN METZGER
96Yes. 01:46:04 1 A.When you first saw these folks, were all three 01:46:04 2 Q.of them in there? 01:46:11 3No. 01:46:12 4 A.What did you see when you first arrived? 01:46:12 5 Q.When I first arrived, there was no one there. 01:46:15 6 A.Were there any signs there at all? 01:46:19 7 Q.The signs were still there, the ones on the 01:46:20 8 A.guardrail. 01:46:24 9And then later on, you saw the gentlemen 01:46:24 10 Q.arrive? 01:46:27 11Yes. 01:46:28 12 A.And then you took this photo; correct? 01:46:28 13 Q.Yes. 01:46:31 14 A.
MR. SALINGER: I think, unless you 01:46:36 15have followup, Mr. DePrimo, we're all set. 01:46:39 16
MR. DePRIMO: I have just a few 01:46:41 17followup questions. 01:46:43 18
REDIRECT EXAMINATION01:46:43 19(By Mr. DePrimo) 01:46:49 20
Ms. Metzger, I'm going to direct your 01:46:49 21 Q.attention to Exhibit 9 for your deposition. 01:46:56 22This exhibit depicts the Hispanic woman with 01:47:14 23three other women that we've been talking 01:47:19 24
DEPOSITION OF KRISTEN METZGER
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101Uh-huh, yes. 01:51:07 1 A.That during the abortion procedure, the doctor 01:51:08 2 Q.rips the arms and legs off the baby while 01:51:11 3he/she is alive; do you see that? 01:51:14 4Yes. 01:51:14 5 A.Does that sound like protest? 01:51:15 6 Q.No. 01:51:18 7 A.Do you see where it says fetal facts, fetus is 01:51:18 8 Q.the Latin word which means baby. Does that 01:51:21 9sound like protect? 01:51:24 10No. 01:51:24 11 A.A fetus is 100 percent human and suffers 01:51:25 12 Q.excruciating agony in an abortion. Does that 01:51:27 13sound like protest? 01:51:30 14No. 01:51:31 15 A.Well, what is it in this particular pamphlet 01:51:31 16 Q.that sounds like protest to you? 01:51:35 17Well, it sounds like they're just trying to 01:51:38 18 A.oppose abortion by giving all these negative 01:51:41 19facts about it. 01:51:44 20Does it appear to you or would it appear 01:51:45 21 Q.reasonable that whoever is handing out this 01:51:48 22pamphlet is trying to inform the recipient? 01:51:51 23Yes. 01:51:53 24 A.
DEPOSITION OF KRISTEN METZGER
102I'm going to direct your attention to 01:51:54 1 Q.Exhibit 16 for your deposition. You describe 01:52:08 2this as a photograph that you took from the 01:52:19 3entrance of the Planned Parenthood in 01:52:22 4Springfield looking across Wason Avenue; is 01:52:24 5that correct? 01:52:27 6Yes. 01:52:27 7 A.And on the very left side of this photograph 01:52:27 8 Q.at the very kind of right in the middle, do 01:52:31 9you see the driveway entrance? 01:52:34 10Yes. 01:52:35 11 A.That's a driveway entrance from Wason Avenue 01:52:36 12 Q.into the Planned Parenthood parking lot? 01:52:41 13Yes. 01:52:42 14 A.Is this the driveway that patrons use to go 01:52:42 15 Q.into Planned Parenthood? 01:52:47 16Yes. 01:52:47 17 A.Did you ever observe a patron of Planned 01:52:48 18 Q.Parenthood using any other driveway? 01:52:53 19I'm not exactly sure who these patrons 01:52:54 20 A.were. 01:52:57 21You couldn't identify the patron? 01:52:57 22 Q.No. 01:53:00 23 A.Do you think it's possible to identify patrons 01:53:00 24 Q.
DEPOSITION OF KRISTEN METZGER
103at Planned Parenthood in Springfield, because 01:53:05 1-- I'll withdraw that question. Do you think 01:53:06 2it's possible to identify patrons of Planned 01:53:07 3Parenthood in Springfield?01:53:11 4
MR. SALINGER: Objection.01:53:11 5MR. DePRIMO: I'll rephrase.01:53:13 6
People who are driving vehicles into the 01:53:13 7 Q.parking lot who park their vehicles, do you 01:53:17 8think it's possible to identify them as 01:53:19 9Planned Parenthood patrons? 01:53:23 10No. 01:53:24 11 A.Let me direct your attention to Exhibit 01:53:25 12 Q.Number 15; Do you see that? 01:53:29 13Yes. 01:53:34 14 A.This is a photograph that you took from the 01:53:35 15 Q.driveway of Planned Parenthood in Worcester; 01:53:38 16correct? 01:53:40 17Yes. 01:53:40 18 A.Straight in the middle, we see a gentleman and 01:53:41 19 Q.a woman; correct? 01:53:45 20Yes.01:53:45 21 A.The man is holding a sign. The sign says God 01:53:46 22 Q.loves you, mom and dad; is that correct? 01:53:50 23Yes. 01:53:52 24 A.
DEPOSITION OF KRISTEN METZGER
104Is this man a protester? 01:53:52 1 Q.He's a pro-life advocate. 01:53:55 2 A.Do you use pro-life advocate and protester 01:54:01 3 Q.interchangeably? 01:54:07 4I might have in my memos. 01:54:07 5 A.Is there a reason why; do you think all 01:54:09 6 Q.pro-life advocates are simply protesters? 01:54:10 7Yeah. 01:54:15 8 A.What about this sign that says God loves, you 01:54:16 9 Q.mom and dad, is a protest? 01:54:19 10I mean, it's not directly protesting abortion, 01:54:21 11 A.but the fact that he's standing outside of a 01:54:27 12clinic with a sign waving at people going 01:54:30 13inside, I think he's trying to get their 01:54:33 14attention. 01:54:36 15So, anyone who stands outside an abortion 01:54:36 16 Q.clinic with a sign who tries to get people's 01:54:39 17attention is by definition a protester? 01:54:43 18I guess so. 01:54:48 19 A.
MR. DePRIMO: I'll pass the Witness. 01:54:49 20MS. VIATOR: I'm not sure what that 01:54:51 21
means, but we have no further questions.01:54:52 22MR. DePRIMO: Ms. Metzger, thank you, 23
your Deposition is concluded.24DEPOSITION OF KRISTEN METZGER
Case 1:08-cv-10066-JLT Document 138 Filed 08/09/11 Page 26 of 38
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106
WITNESS CERTIFICATE/ERRATA SHEET
I, Kristen Metzger, do hereby certify that I have read the foregoing transcript of my testimony, and further certify that said transcript is a true and accurate record of said testimony.
PAGE LINE SHOULD READ
9 0 12 ? lea sant Ave. 0( ?leAscurf 54r-ee
q 5 Wcksoo Ave nv,Q inok `6o s+on_ 4i_vc"^-e-14-1
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS X DAY OF , 2011.
Kristen M t
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DEPOSITION OF KRISTEN METZGER
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EXHIBIT NO.___ / I
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DID YOU KNOW--
....that daring the
abortion procedure, the. .doctor rips the . arms and
legs off the baby while
he/she is still alive?
FETAL FACTS
o Fetus is the Latin word which means baby.
- A fetus is 100% human and suffers excruciating agony in an abortion.
• Scientifically speaking, life begins at conception and is continuous then on until death.
• Every genetic trait is already determined at conception including the color of skin, hair, eyes, eta.
ABORTIONISTS PROFIT OFF THE UNINFORMED
Abortionists don't give patients this information. If they did, moSt women would not have an abortion. In gross violation .of basic women's rights, abortionists are tricking women - into killing their babies. Women have a right to know this impodant information.
18 weeks. Abortions are pedbrmed regularly on babies this age.
'Abortions are kgal through all sine months of pregnoley even for non-medical reasons.
ABORTION ALTERNATIVES - If you ever need help, take advantage of these free services also found in the yellow pages under
".abertion alternatives, they offer:
O Free pregnancy .tests •
• Financial aid • •0 Free housing*
o Free baby clothes, goods etc. *Not available at all services
CALL THESE FRIENDLY AND CONFIDENTIAL SERVICES ANYTIME
1 (800) 550-4900 Birthright 1 (800) 395-4357 Care Net 1 (800) 662-2678 Several
Sources Foundation 1 (800) 238-4269 Bethany
Christian Services
. or go to www.optIonline.org
GOOD NEWS If you have had an abortion. Jesus will forgive you if you ask Him. Besides, you are only partly to blame bacause 1. You (kat know, and 2. The doctor wasn't upfront vtiith you
WOMEN WHO HAD AB-ORTIONS -
It may take a lifetline fbr a women to learn how to cope with the realization that she killed her very own baby. This psychological condition is now known as "Post- Abortion Trauma*. There are support groups available for them. The most well known is Project Rachel at 617-783-8300.
MORE WOMEN DIE IN - LEGAL ABORTIONS
Before abortion was legalized in 1973 only 39 worhen died from Menai 'abortions. Today, over 450 women die a year from leaal abortions! Abortions can't be made safe. Some complications include: Perforated uterus, infection, torn cervix, blood clots, hemorrhaging, infertility, and even death.
Flyer Composed by Defenders of Women
AG 132
Case 1:08-cv-10066-JLT Document 138-10 Filed 08/09/11 Page 1 of 1
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ELEANOR McCULLEN, JEAN BLACKBURN ZARRELLA,
GREGORY A. SMITH, ERIC CADIN, CYRIL SHEA,
NANCY CLARK, and MARK BASHOUR
Plaintiffs,
v.
MARTHA COAKLEY, as Attorney General for the
COMMONWEALTH OF MASSACHUSETTS; DANIEL F.
CONLEY, as District Attorney for Suffolk County; MARK G.
MASTROIANNI, as District Attorney for Hampden County,
and JOSEPH D. EARLY, JR., as District Attorney for
Worcester County,
Defendants.
No. 1:08-cv-10066-JLT
STIPULATION REGARDING BUFFER ZONE MEASUREMENTS
For the purpose of the bench trial on plaintiffs’ as-applied challenge to the
constitutionality of Mass. G.L. c. 266, § 120E1/2, as revised effective November 13,
2007, the parties hereby stipulate to the following:
Boston
1. Planned Parenthood: Greater Boston Health Center (“Boston PP”) is located at 1055
Commonwealth Ave. in the Allston-Brighton neighborhood of Boston,
Massachusetts.
2. Boston PP is located in a stand-alone building on the north side of Commonwealth
Ave. at the corner with Alcorn St. to its west.
3. Boston PP’s front door faces Commonwealth Ave. The front door is set back
approximately 12 feet from the public sidewalk that runs along the front of the
building on Commonwealth Ave., and is recessed into an open foyer inside the
building. The entrance to the foyer is 7 feet, 4 inches wide at its narrowest point.
There is also a rear garage entrance facing Gardner St., which runs parallel to
Commonwealth Ave. to the north.
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4. There are two buffer zones marked with arcs painted in yellow and posted with signs
that contain the language in M.G.L. c. 266, § 120E 1/2(b), one on Commonwealth
Ave. and one on Gardner St.
5. The arc on Commonwealth Ave. surrounds the front door. It measures 56 feet from
edge to edge along the public sidewalk. A sign is posted on the façade of the building
immediately adjacent to the open foyer that contains that language in M.G.L. c. 266,
§ 120E 1/2(b). This sign faces Commonwealth Ave.
6. The eastern-most edge of the arc is 22 feet, 7 inches from the nearest part of the open
foyer at the front door to Boston PP along the public sidewalk of Commonwealth
Ave.
7. The western-most edge of the arc is 26 feet, 1 inch from the nearest part of the open
foyer at the front door to Boston PP. It extends at is farthest point 4 feet, 4 inches
into Alcorn Street parallel to Commonwealth Ave. The western-most edge of the arc
at that point measures 21 feet, 9 inches from the curb of Alcorn St. that is opposite the
Boston PP.
8. The northern-most edge of the arc extends 12 feet from the corner of the building
down Alcorn St.
9. At the southern-most edge of the arc, the buffer zone marking extends in straight lines
opposite the outside bounds of the open foyer at the front door to the curb of
Commonwealth Ave. The public sidewalk along Commonwealth Ave. in front of
Boston PP is 25 feet wide, measuring from the Boston PP building to the curb. To
the immediate east and west of the straight lines, the arc’s farthest point is on the
public sidewalk 1 foot from the curb of Commonwealth Ave.
10. The arc on Gardner Street measures a 35-foot radius surrounding the rear garage
entrance. Gardner St. is 34 feet, 3 inches wide at that point. A sign is posted on the
façade of the building immediately adjacent to the garage entrance that contains that
language in M.G.L. c. 266, § 120E 1/2(b). This sign faces Gardner St.
11. Fair and accurate photographs of the public ways surrounding Boston PP taken from
the roof of the building are attached in Exhibit A.
Worcester
12. Planned Parenthood: Central Massachusetts Health Center ("Worcester PP") is
located at 470 Pleasant St., Worcester, Massachusetts. The driveway entrance to
Worcester PP is located around the corner on Dewey St. Worcester PP’s parking lot is
L-shaped.
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13. Worcester PP is located in a stand-alone building. The building has three floors. The
ground floor of the building is approximately one-third of the building’s entire length.
The remaining two-thirds of the ground level area are a covered concrete walkway
and blacktop pavement used for vehicle parking.
14. The main door to Worcester PP is recessed under the overhang of the building. It is
accessible directly from Worcester PP’s parking lot. The main door is also accessible
from Pleasant St. by way of a concrete walkway. Two staggered metal fences,
combined, run the entire length of the building along Pleasant St. The inner fence is
located 38 feet, 8 inches from the main door at its nearest point. The outer fence is
located 44 feet, 9 inches from the main door at its nearest point. Persons may access
the main door by passing through the staggered fences, which are 6 feet, 1 inch apart
at their nearest point. The main door is located 53 feet, 9 inches from the public
sidewalk on Pleasant Street as measured in a straight line.
15. There are two buffer zones marked with arcs painted in white and posted with signs
that contain the language in M.G.L. c. 266, § 120E1/2(b), one on Pleasant St. and one
on Dewey St.
16. The arc on Pleasant St. surrounds the concrete walkway that leads to the main door.
The walkway is 12 feet, 11 inches at its widest point adjacent to the public sidewalk
and narrows as it continues toward the main door.
17. The arc on Pleasant St. measures 83 feet, 1 inch in a straight line from edge to edge
along the public sidewalk. The public sidewalk along Pleasant St. is 8 feet, 6 inches
wide at that point. The arc crosses over a double yellow line in the middle of Pleasant
St. The top of the arc measures 34 feet, 10 inches from the curb of Pleasant St.
adjacent to the center of the concrete walkway. The top of the arc measures 3 feet, 10
inches from the curb of Pleasant St. that is directly opposite and across the street
from the concrete walkway.
18. Two signs are posted inside the arc on Pleasant St. toward the outmost edges. The
sign on the west side of the arc is positioned 18 feet, 8 inches from the painted arc.
The sign posted on the east side of the arc is positioned directly adjacent to the
painted arc. Both signs face Pleasant St. These signs contain the language in M.G.L.
c. 266, § 120E 1/2(b).
19. The arc on Dewey St. surrounds the driveway entrance to the Worcester PP parking
lot. The arc measures 93 feet, 7 inches in a straight line from edge to edge along the
public sidewalk. Both the north and south lines of the Dewey St. buffer zone arc are
located 36 feet, 7 inches from the nearest edge of Worcester PP’s driveway. The top
of the arc crosses Dewey St. to a point on a public sidewalk that is 5 feet, 8 inches
beyond the street curb opposite the driveway.
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20. One sign is posted inside the arc on Dewey St. The sign is located 2 feet from the
driveway and 34 feet, 7 inches from the nearest point on the arc. The sign contains
the language in M.G.L. c. 266, § 120E 1/2(b). This sign faces Dewey St.
21. The statutory language on the three posted signs is printed in black, 36 point type.
Springfield
22. Planned Parenthood: Western Massachusetts Health Center ("Springfield PP") is
located at 3550 Main St., Springfield, Massachusetts, in a medical complex
containing three buildings at the corner of Main St. and Wason Ave.
23. Springfield PP is located in red brick building with a brown roof. The doors of this
building are set back 316 feet, 2 inches from Main St. and 206 feet, 5 inches from
Wason Ave. Seven other separate and distinct medical businesses are housed in this
building along with Springfield PP.
24. There are five driveway entrances/exits for ingress and egress at the medical
complex, three on Main St. and two on Wason Ave.
25. There are two driveway entrances around which arcs are painted in white. Signs
containing the language in M.G.L. c. 266, § 120E 1/2(b) have been placed inside the
painted white arcs, one on Wason Ave. and one on Main St. The statutory language
on the two signs is printed in black, 36 point type.
26. The arc surrounding the western-most driveway entrance on Wason Ave. measures
100 feet, 5 inches in a straight line from edge to edge along the public sidewalk. The
top of the arc crosses over a faded double yellow line in the middle of Wason Ave.
The top of the arc measures 12 feet, 5 inches from the curb of Wason Ave. that is
opposite the driveway entrance to the medical complex. A sign is posted inside the
arc that contains the language in M.G.L. c. 266, § 120E 1/2(b). This sign faces Wason
Ave.
27. The arc surrounding the middle driveway entrance on Main St. measures 99 feet, 1
inch in a straight line from edge to edge along the public sidewalk. The top of the arc
crosses over a double yellow line in the middle of Main St. The top of the arc
measures 21 feet, 4 inches from the curb of Main St. that is opposite the driveway
entrance to the medical complex. A sign is posted inside the arc that contains the
language in M.G.L. c. 266, § 120E 1/2(b). This sign faces Main St.
28. There are three additional driveway entrances around which arcs are painted in white.
Signs containing the language in M.G.L. c. 266, § 120E 1/2(b) have not been placed
inside these arcs.
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29. The arc surrounding the eastern-most driveway entrance on Wason Ave. measures 95
feet, 5 inches in a straight line from edge to edge along the public sidewalk. The top
of the arc crosses over a faded double yellow line in the middle of Wason Ave. The
top of the arc measures 12 feet, 5 inches from the curb of Wason Ave. that is opposite
the driveway entrance to the medical complex.
30. The arc surrounding the southern-most driveway entrance on Main St. measures 99
feet, 9 inches in a straight line from edge to edge along the public sidewalk. The top
of the arc crosses over a double yellow line in the middle of Main St. The top of the
arc measures 21 feet, 4 inches from the curb of Main St. that is opposite the driveway
entrance to the medical complex.
31. The arc surrounding the northern-most driveway entrance on Main St. measures 100
feet, 2 inches in a straight line from edge to edge along the public sidewalk. The top
of the arc crosses over a double yellow line in the middle of Main St. The top of the
arc measures 21 feet, 4 inches from the curb of Main St. that is opposite the driveway
entrance to the medical complex.
32. Each arc measures 35 feet in a straight line from the middle of the driveway (where
the bottom of the driveway meets the street) to the arc's highest point. This line is
perpendicular to the street.
33. The stretch of public sidewalk representing the property line of the medical complex
along Wason Ave. measures 514 feet, 10 inches.
34. The stretch of public sidewalk representing the property line of the medical complex
along Main St. measures 906 feet, 2 inches.
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