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'Devoid of evidence,' Holder still pursues pro-lifer

Eric Holder, Barack Obama’s hand-picked attorney general, is appealing a decision that favored a Florida pro-life activist even though the district judge who dismissed the case for lack of evidence said he considered sanctions against the federal government.

Holder’s notice of appeal yesterday to the U.S. District Court for the Southern District of Florida came in Eric H. Holder Jr. v. Mary Susan Pine.

Harry Mihet, senior litigation counsel for Liberty Counsel, commented that the Justice Department “has apparently forgotten its name and that its purpose is to pursue justice, not unconstitutional, groundless claims manufactured by abortion clinics to intimidate and silence pro-life Americans.”

“Mr. Holder’s appeal will meet with the same fate as his initial lawsuit,” he said. “His time would be better spent protecting, rather than undermining, the Constitution he swore to uphold.”

The dispute was over whether Pine could be prosecuted under a federal law that bans obstructing access to a “clinic,” or in her case an abortion business.

Earlier this year, U.S. District Judge Kenneth L. Ryskamp dismissed the complaint against the woman for lack of evidence, but he did not stop there.

Ryskamp charged that there appeared to be some sort of collusion between abortion business operators and the federal government. He suggested that if there was a little more evidence, he might have taken action.

“It is rather curious that the Department of Justice was able to meet with the [Presidential Women’s Center in West Palm Beach, Fla.] staff and police officers the very next day after the alleged violations occurred. It is also curious that the government failed to make any efforts to obtain the identities of the passengers who are the alleged victims in this case – the court finds it hard to believe that the government was completely unaware of the existence of the sign-in sheets and video surveillance system,” he wrote.

The judge said the court “can only wonder whether this action was the product of a concerted effort between the government and the PWC, which began well before the date of the incident at issue, to quell Ms. Pine’s activities rather than to vindicate the rights of those allegedly aggrieved by Ms. Pine’s conduct.”

“If this is the case, the court would be inclined to sanction the government with, at a minimum, an adverse inference. Given the absence of further evidence substantiating the court’s suspicions, the court is not authorized to do so,” the judge wrote.

The judge’s 21-page ruling granting Pine a summary judgment and clearing her of the charges said the entire episode raised questions.

“The court is at a loss as to why the government chose to prosecute this particular case in the first place,” Ryskamp wrote. “The record [is] almost entirely devoid of evidence that Ms. Pine acted with the prohibited motive and intent or that Ms. Pine engaged in any unlawful conduct. The government has failed to create a genuine issue for trial on all three elements of its FACE (Federal Access to Clinic Entrances) claim, and Ms. Pine is entitled to judgment as a matter of law.”

Federal prosecutors had accused her of stopping a car to talk to the occupants while they were going into a parking lot. There was no evidence that they were heading to an abortion clinic.

The judge wrote:

Congress, undoubtedly aware of FACE’s potential First Amendment implications, specifically provided that FACE shall not be construed “to prohibit any expressive conduct including peaceful picketing or other peaceful demonstrations protected from legal prohibition by the First Amendment to the Constitution.”

A person is entitled to express his or her views on abortion so long as by doing it does not interfere with another’s right to obtain an abortion. In this case, Ms. Pine was on a public driveway conducting a peaceful demonstration on an important topic of public concern. …

Stretching the terms of FACE to apply to this case so that delaying a vehicle for a matter of seconds constitutes an unlawful physical obstruction, or so that a desire to provide people with information about alternatives to abortion constitutes an unlawful motive, would unjustifiably impinge on Ms. Pine’s First Amendment rights.

There is thus no competing constitutional right to justify the burden placed on Ms. Pine’s right of expression and hold her liable for a hefty civil penalty of up to $10,000.

Now, Liberty Counsel has confirmed that the case was absent “any evidence of wrongdoing,” but Holder was taking it to the next level anyway. The notice of appeal was signed by Cathleen S. Trainor, senior trial attorney, on behalf of Holder.

Liberty Counsel noted that the “Holder’s complete failure to present any evidence of wrongdoing, coupled with the DOJ’s cozy relationship with PWC and their joint failure to preserve video surveillance footage” prompted the judge to suspect “a conspiracy at the highest level of the Obama administration.”

Liberty Counsel confirmed it has asked Ryskamp to award Pine about $140,000 in attorney’s fees and costs for having to defend herself against “Holder’s political lawsuit.”

But, the legal firm said “the DOJ now appears to be doubling down, committing yet more taxpayer funds and resources to the abortion lobby’s efforts to silence pro-life Americans.”

Holder launched the attack on the women in 2010. Pine routinely approaches vehicles and pedestrians entering and exiting the PWC’s shared parking lot, talking about abortion and offering information about “life-affirming” alternatives, the court opinion explained.

“Sometimes people stop and accept her literature; many people do not.”

The situation developed on Nov. 19, 2009, when Sanjay Raja, a police officer, was on duty. He had positioned himself so he could observe Pine from about 300 feet away.

He reported a green sedan started entering the lot through the “exit only” drive, and stopped, and Pine approached the driver’s window. The driver rolled the window down, and she talked with the driver and a passenger.

The officer told them not to block traffic, and the car moved on.

The DOJ started working on a FACE prosecution the next day, but the judge noted that the government never asked for any surveillance videos or login records from the abortion business, and they later were destroyed routinely.

The judge noted Pine sought the dismissal because the government failed to prove she obstructed the sedan or even that the vehicle occupants were en route to the abortion business.

“Although one might suspect that the government was in fact aware of such facts [about surveillance videos], and that it purposely neglected to prevent destruction of the sign-in sheets and surveillance tapes because they were detrimental to its FACE claim, mere speculation is insufficient to support a finding of bad faith,” the judge wrote. “The government’s failure to take the necessary steps to prevent the destruction of potentially critical evidence was indeed negligent, and perhaps even grossly negligent.”