United States District Court, E.D. Pennsylvania
S. Friedman Jason A. Cabrera Attorneys for Plaintiff
Allentown Women's Center, Inc.
F. KENNEY, JUDGE.
Allentown Women's Center, Inc. ("AWC") has
moved for a preliminary injunction against Defendants Anthony
Sulpizio and Mark Bogunovich 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.
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.
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.
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.
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.
Court held a preliminary injunction hearing
("Preliminary Injunction Hearing") on June 26 and
FINDINGS OF FACT
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.
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.
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.
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.
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.
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.
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.
the Preliminary Injunction Hearing, Plaintiff introduced five
witnesses, all of whom were volunteers or employees of AWC.
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.
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
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.
Escort Smith, who testified under this pseudonym, has been an
escort volunteer at AWC since 2004. Id. at 195.
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.
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