Metropolitan News-Enterprise


Wednesday, September 6, 2005


Page 1


Ninth Circuit Panel, Citing High Court Ruling, Cuts Punitive Damage Award Against Abortion Protestors


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday substantially slashed a punitive damage award to physicians who said they felt threatened after an anti-abortion group and its members created Wild West-style posters and a website targeting abortion doctors.

In a 6-5 en banc ruling three years ago, the court said the defendants must pay damages to the physicians because their works were illegal threats and not free speech. Judge Pamela Ann Rymer, writing for the court, said the posters were “true” threats when understood in context.

She noted that three doctors were murdered shortly after similar posters with their names and images appeared, and said the posters read in conjunction with comments on the “Nuremberg Files” website could reasonably be viewed as threatening, even though the website by itself could not.

Four doctors testified they feared for their lives, and sued under racketeering laws and the 1994 Federal Access to Clinic Entrances, or FACE, Act, which makes it illegal to incite violence against abortion doctors. During trial, targeted doctors who performed abortions testified that they used disguises, bodyguards and bulletproof vests, and instructed their children to crouch in the bathtub if they heard gunfire.

While leaving the jury verdict on liability and compensatory damages undisturbed, the en banc court sent the case back to U.S. District Judge Robert Jones of the District of Oregon for reconsideration of the $108.5 million in punitive damages the jurors awarded to four abortion doctors and two clinics who sued a dozen abortion foes, including the American Coalition of Life Activists and Michael Bray, author of a book that justifies killing doctors to stop abortions.

The en banc ruling preceded the Supreme Court’s decision on punitive damages in State Farm Mut. Auto Ins. Co. v. Campbell (2003) 538 U.S. 408. The court based its remand order on the circuit’s November 2001 decision in the Exxon Valdez case, holding that a $5 billion punitive damages verdict against the oil company was “excessive.”

In that case, the court found punitive damages that exceeded four times compensatory damages to be “grossly inappropriate.”

On remand, Jones said the entire award should stand. But a three-judge panel—made up of Rymer,  Judge Andrew J. Kleinfeld,  and Senior Judge Ferdinand Fernandez—yesterday disagreed.

Rymer, writing for the three, said that while the conduct “hovers high in the hierarchy” of reprehensibility and is “significantly blameworthy,” the plaintiffs must choose between a new trial and a reduction of punitive damages to a total of $4.73 million, which is nine times the compensatory damages found by the jury.

Rymer cited several Supreme Court cases, including State Farm. Justice Anthony Kennedy, writing for the court in that case, concluded that while the Constitution does not “impose a bright-line ratio which a punitive damages award cannot exceed,” awards should generally be limited to four times compensatory damages and that there would be few situations in which “awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”

In this case, the judge said, the conduct was sufficiently egregious to support the high-end award under Kennedy’s analysis, but not—given the lack of actual violence, the substantial amount of the compensatory damage award, and the fact that none of the defendants had previously been sanctioned for misconduct directed at the plaintiffs—to find an exception to the 9 to 1 limit.

Rymer declined, however, to revisit other issues in the case, including the ACLA’s argument that its posters were protected under the First Amendment because they were merely a list of doctors and clinicsónot a threat. The defendants maintained they collected data on doctors in hopes of one day putting them on trial, just as Nazi war criminals were at Nuremberg.

The judge noted that the Supreme Court previously denied a certiorari petition based on those arguments. The en banc ruling is thus settled law on those issues and they are “not open for review,” Rymer explained.

Warren Hern, a plaintiff in the case who performs abortions in Boulder, Colo., told the Associated Press the money was not as important as the symbolic value of winning in court. No amount of compensation would put him at ease, he said.

“The Mafia has the decency to keep its hit list private,” he said. “The Mafia is a fine, upstanding organization compared to the American Coalition of Life Activists.”

The jury awarded Hern $13 million in punitive damages, which the court reduced to $129,861, or nine times the $14,429 in compensatory damages the jury awarded him.

The case is Planned Parenthood v. American Coalition of Life Activists, 99-35320.


Copyright 2005, Metropolitan News Company