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Judge sides with abortion opponent in Kansas case

Published on -8/16/2013, 8:08 AM

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By ROXANA HEGEMAN

Associated Press

WICHITA, Kan. (AP) -- An abortion opponent's letter to a Wichita doctor saying someone might place an explosive under her car is constitutionally protected speech and not a "true threat" under existing law, a federal judge ruled Thursday.

U.S. District Judge J. Thomas Marten summarily found in favor of Angel Dillard in the 2011 civil lawsuit brought by the Justice Department under a law aimed at protecting access to abortion services. The 25-page decision handed down comes after a flurry of sealed filings seeking summary judgment.

The judge wrote that the government supplied no evidence that actual violence against Dr. Mila Means was likely or imminent.

"It was a great victory for the First Amendment," said her attorney, Don McKinney. "Obviously, we agree with the opinion. I appreciate the court held the U.S. Department of Justice accountable to the law and the evidence."

He portrayed his client's reaction to the ruling as "joy," noting she had been deposed for eight or nine hours by the government.

"It was a long, difficult case," McKinney said. "The government was very energetic and all the government lawyers worked very hard."

The Justice Department's Civil Rights Division said in an emailed statement that it is reviewing the court's order and evaluating its options.

"The right of doctors to deliver lawful reproductive health services free from threats of violence is protected by federal law," the department said.

The government sued Dillard under the Freedom of Access to Clinic Entrances Act (FACE) after the Valley Center woman wrote Means a letter in January 2011 when Means was training to offer abortion services at her Wichita clinic. At the time, no doctor was doing abortions in Wichita in the wake of Dr. George Tiller's murder by an abortion opponent.

Dillard wrote in her letter that thousands of people from across the nation were scrutinizing Means' background and would know "your habits and routines."

"They know where you shop, who your friends are, what you drive, where you live," the letter said. "You will be checking under your car every day -- because maybe today is the day someone places an explosive under it."

The judge noted in his decision that Dillard sent the letter openly with her return address on it.

Dillard had testified in her deposition that "I did what the Lord asked me to do. He impressed upon me that I needed to write the letter and I did."

Her husband, Dr. Robert Dillard, also testified in his deposition that the agent from the Federal Bureau of Investigation who called them about the letter in April 2011 told the couple that he personally, and the FBI in general, were frustrated by the Justice Department's lawsuit because they "felt it was undermining the trust and relationships that they were trying to develop with people who were not extremists but were still pro-life," according to the court filing.

When questioned about that conversation, FBI agent Sean Fitzgerald did not "directly deny," making such comments but testified he was trying to build rapport with the Dillards, the judge noted.

The judge also rejected the government's request for a permanent injunction prohibiting Dillard from again contacting Means. He was persuaded by the defense argument that she would have no reason to do so since Means no longer has any plans to offer abortion services in Kansas.

The court also noted the government's argument that Means had refrained from contacting Means while the lawsuit was pending.

"If the glare of publicity and the prospect of additional government legal action are sufficient by themselves to prevent further communications by Dillard, they would remain even in the absence of separate injunction relief," the judge wrote. "That is, the government effectively concedes that Dillard is a rational person, at least in sensing the folly of additional communications with Dr. Means."

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