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Inc. v. Sulpizio

United States District Court, E.D. Pennsylvania

August 28, 2019

ALLENTOWN WOMEN'S CENTER, INC., Plaintiff,
v.
ANTHONY J. SULPIZIO, et al. Defendants.

          Debra S. Friedman Jason A. Cabrera Attorneys for Plaintiff Allentown Women's Center, Inc.

          MEMORANDUM

          CHAD F. KENNEY, JUDGE.

         I. BACKGROUND

         Plaintiff Allentown Women's Center, Inc. ("AWC") has moved for a preliminary injunction against Defendants Anthony Sulpizio and Mark Bogunovich[1] to prevent alleged ongoing violations of the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248, and related state law claims and to have the Court enjoin Defendants from coming within a "buffer zone" of 25 feet extending in all directions around any of the driveway entrances onto the public right-of-way. ECF No. 3, 3-2.

         Plaintiff has alleged in its Complaint and Motion for Preliminary Injunction, as well as introduced evidence at the Preliminary Injunction Hearing seeking to show, that Sulpizio violated FACE by engaging in the use of force and making threats of force and both Sulpizio and Bogunovich violated FACE by engaging in physical obstruction to injure, intimidate, or interfere with AWC staff and patients who are seeking to provide or obtain reproductive health care services at AWC. See generally ECF Nos. 3-1, 79-80.

         Defendant Bogunovich contends that the Motion for Preliminary Injunction seeking to prohibit his alleged physical obstruction should be denied because he is engaged in "First Amendment protected sidewalk counseling," that "he has a lawful and constitutional right" to "raise his arm in an effort to convince cars to stop and speak with him" since he is standing on the "public right of way," and that he does not intentionally walk slowly across the AWC drive to physically block access to AWC. ECF No. 42 at 3. Defendant Sulpizio contends that the Motion for Preliminary Injunction seeking to prohibit his alleged use of force, threat of force, and physical obstruction should be denied because he has "not engaged in force, threat of force, or physical obstruction in violation of FACE" and that Plaintiffs preliminary injunction seeks to improperly require Defendant Sulpizio to "stand where [his] pro-life message can no longer be conveyed effectively." ECF No. 46 at 17.

         II. PROCEDURAL HISTORY

         Plaintiff filed a motion for preliminary injunction on April 11, 2019 against Anthony Sulpizio and Mark Bogunovich to prevent alleged ongoing violations of FACE and other state law claims and to prevent Defendants from coming within a 25-foot buffer of the AWC entrances. ECF No. 3. Defendant Sulpizio responded on May 28, 2019. ECF No. 46. Defendant Bogunovich responded on May 28, 2019. ECF No. 42. Plaintiff filed its replies in support of its Motion for Summary Judgment on June 21, 2019. ECF Nos. 62, 64.

         This Court held a status conference on May 29, 2019 after the Motion for Preliminary Injunction and responses were filed to discuss the status of the briefing and the scheduling of a preliminary injunction hearing. ECF No. 48. The parties determined that the primary evidence at issue at this preliminary injunction hearing would be testimony from the five witnesses identified in the Complaint and the two Defendants, along with security videos that Plaintiff had recorded at the AWC, videos possessed by any witnesses, along with any videos possessed by Defendants.

         This Court held a preliminary injunction hearing ("Preliminary Injunction Hearing") on June 26 and 27, 2019.

         III. FINDINGS OF FACT

         1. The two remaining Defendants, Anthony Sulpizio ("Sulpizio") and Mark Bogunovich ("Bogunovich") (together "Defendants"), are regular protesters and self-proclaimed sidewalk counselors at the AWC, who stand at the two entrances of the AWC and attempt to stop individuals in cars who are coming to the AWC for an appointment and engage them in conversation about abortion. ECF No. 79 at 261; ECF No. 80 at 12-13, 21.

         2. Sulpizio has been going to the AWC to protest and as a self-proclaimed sidewalk counselor for 6.5 years and currently protests at the AWC four times a week, for 10-11 hours per week. ECF No. 80 at 24. ECF No. 80 at 24.

         3. Bogunovich has been going to the AWC to protest and as a self-proclaimed sidewalk counselor since 2011 and currently protests at the AWC for about 1-2.5 hours every Thursday, Friday, and Saturday. ECF No. 79 at 262-3.

         4. Although both Sulpizio and Bogunovich are both regular protesters at the AWC, the evidence thus far has shown that the two protesters are not similar in the way that they communicate with AWC patients and staff.

         5. As discussed further below, there is no evidence that Bogunovich uses any inappropriate language towards the patients or AWC staff while he is protesting but rather will make comments about "hell and repentance," and "religious statements [about] burning in hell [and] eternal damnation." ECF No. 79 at 109, 163.

         6. Sulpizio, on the other hand, and as shown below, regularly yells obscenities at the AWC staff while he is protesting or leafletting, including yelling "very upsetting things," "insult[ing]" the staff, "sham[ing] [them] for [their] body shape and size," asking if an employee was "having sex on [her] desk in [her] office with another employee," yelling at an employee's son who was visiting the AWC stating "aren't you glad that when your father had your mother up on the bed with her feet in the stirrups that he didn't suck you out," as well as yelling many other "racial, homophobic [and] transphobic slurs," which the AWC staff face from Sulpizio every time they come to the AWC. ECF No. 79 at 102-3, 162, 169.

         7. The videos and evidence show that Sulpizio attempts to bait the AWC employees to respond by yelling curse words and making vulgar comments to them as they drive in or out of the AWC parking lot or as they walk between the AWC and their car.

         8. At the Preliminary Injunction Hearing, Plaintiff introduced five witnesses, all of whom were volunteers or employees of AWC.

         9. Escort Stiles, who testified under this pseudonym, is a volunteer escort at the AWC whose job is to help the clients get into the AWC. ECF No. 79 at 9. Escort Stiles has been volunteering at AWC for about four years and regularly volunteers at the AWC every Saturday from 9:00 a.m. to 12 p.m. Id. at 10.

         10. Nurse Doe, who testified under this pseudonym, is the Chief Operating Officer of AWC and has worked at AWC from 1994-1998 and then since 2011. Id. at 91. In addition to being AWC's Chief Operating Officer, Nurse Doe is a registered nurse. Id.

         11. Dr. Roe, who testified under this pseudonym, is an obstetrician/gynecologist who has been working at the AWC since 2000 and is currently employed as the Medical Director of the AWC. Id. at 158-159.

         12. Escort Smith, who testified under this pseudonym, has been an escort volunteer at AWC since 2004. Id. at 195.

         13. Employee 1, who testified under this pseudonym, works at the AWC at the front desk and as a transition health advocate, among other positions. Id. at 229. Employee 1 has been working at AWC since March 2017 and currently works 5-6 days per week at the clinic. Id. at 230.

         14. Plaintiff produced a video of the interaction between Sulpizio and AWC escorts from April 15, 2017, labeled Plaintiffs Exhibit No. 2. ECF No. 79 at 39. The Court finds that the video shows as follows: First, Sulpizio is standing at the left side of the Courtney Street entrance and, as a car pulls up, Sulpizio approaches the driver's side window with a piece of paper, which Sulpizio hands to the driver. Sulpizio leans to the driver's side window, points to AWC and begins to talk to the driver. Sulpizio stands up straight but continues to communicate with the driver for about 18 seconds, until three AWC escorts appear at the bottom of the frame, coming from the AWC, motioning to the car to pull farther into the driveway. Sulpizio continues to talk to the driver as the three escorts walk quickly down the driveway toward Sulpizio and the car. When the first AWC escort, Escort Stiles, reaches the end of the driveway, the car pulls forward slightly, and Sulpizio and Escort Stiles approach the driver's side window at the same time, both seemingly trying to communicate with the driver. Escort Stiles and Sulpizio then face each other and exchange words, then Escort Stiles tries to move back toward the driver of the car, when Sulpizio continues to face Escort Stiles and pushes swiftly against Escort Stiles's head, knocking Escort Stiles's hat off. After this happens, one of the other two escorts gets between Escort Stiles and Sulpizio and ...


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