Abortion clinic protester's sentence might violate First Amendment

You don't see too much in the way of Seventh Amendment litigation these days. Here's one involving an anti-abortion protester who was convicted after a bench trial of violating the Freedom of Access to Clinic Entrances Act (FACE). He says that he deserved a jury trial. The Second Circuit disagrees. But it says the punishment might violate the First Amendment because the defendant has to stay 1,000 feet from abortion clinics.

The case is U.S. v. Dugan, decided on December 5. The Supreme Court says that under the Seventh Amendment, criminal cases get a jury trial if the defendant is charged with a "serious" and not a "petty" offense. The difference is that any offense that carries a maximum term of six months or less is presumed to be petty. You can overcome that presumption if additional penalties, such as a large fine, reflect a legislative determination that the offense is serious under the Seventh Amendment.

As the potential sentence for Dugan was six months, he can only win the appeal and get a jury trial if the fine is high enough under the Seventh Amendment. Although he faced a maximum penalty of $10,000, two other circuits hold that "FACE Act offenses like this one, i.e., nonviolent, first-time offenses, are not 'serious' and thus do not require a jury trial." The Court of Appeals agrees with those decisions and says that Dugan was not entitled to a jury trial.

For some reason, the Court of Appeals issues two decisions in this case. The jury trial issue gets a published opinion. The propriety of Dugan's sentence, though, gets a summary order. All the more strange since the summary order is a little more interesting, and the Court of Appeals says the punishment might violate the First Amendment. The district court ordered that Dugan cannot come within 1,000 feet of an abortion clinic. He was found guilty of blocking access to a clinic. "The testimony of the clinic’s security guard established that Puckett kneeled intentionally in front of the door to block it. ... The security guard testified that Puckett 'was kneeling directly in front of the door so the door could not have opened.' The security guard then indicated that the police arrested Puckett after he refused to move and that '[a]fter the police removed him . . . both staff and patients were able to enter into the clinic.'” OK, so Dugan is guilty. Is the penalty (stay away more than 1,000 feet from reproductive health facilities) excessive?

It might be. The Court wants the trial court to consider "whether the condition is narrowly tailored to serve a compelling government interest. Dugan had no prior notice that the condition might be imposed because it first was suggested in the government’s sentencing letter, submitted to the district court a day before the hearing and not copied to Dugan, who was proceeding pro se. On remand, the district court must determine whether the substantial limit on Dugan’s freedom of movement is 'reasonably related' to the government’s interest in deterring future violations of the FACE Act and in protecting the patients and staff of reproductive health facilities."

The Second Circuit also wants the district court to "consider Dugan’s history of protesting at reproductive health clinics, his First Amendment interests in free speech, as well as his statements that he has a 'duty' to prevent abortions. In addition, the district court must consider whether a stay-away distance of 1,000 feet (more than the length of three football fields) is narrowly tailored to the government interest where Dugan’s offense arose from the non-violent obstruction of a clinic entrance, and where, particularly in urban areas, the condition could significantly impede Dugan’s freedom of movement."