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Hearing on Motion for Preliminary Injunction (Order)

Apr 06, 2018

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    1 IN THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF COLORADO

    2

    Civil Action No. 11-cv-001430-PAB

    3

    UNITED STATES OF AMERICA,

    4

    Plaintiff,5

    vs.

    6

    KENNETH SCOTT,

    7

    Defendant.

    8 _______________________________________________________________

    9

    REPORTER'S TRANSCRIPT

    10 Hearing on Motion for Preliminary Injunction (Order)

    11 _______________________________________________________________

    12 Proceedings before the HONORABLE JUDGE PHILIP A.

    13 BRIMMER, Judge, United States District Court for the District

    14 of Colorado, at commencing at 4:50 p.m., on the 26th day of

    15 January, 2012, in Courtroom A-701, United States Courthouse,

    16 Denver, Colorado.

    17

    18

    19

    20

    21

    22

    23

    24 Proceeding Recorded by Mechanical Stenography, Transcription

    Produced via Computer by Janet M. Coppock, 901 19th Street,

    25 Room A-257, Denver, Colorado, 80294, (303) 893-2835

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    1 APPEARANCES

    2 Aaron Fleisher, Julie Abbate and Winsome Gayle,

    3 U.S. Department of Justice, Civil Rights Division 950

    4 Pennsylvania Avenue, N.W., Washington, DC 20530, appearing for

    5 the Plaintiff.

    6 Peter Christopher Breen, Thomas More Society,

    7 29 South La Salle Street, Suite 440, Chicago, IL 60603-1548;

    8 Rebecca Reynolds Messall of Hackstaff Law Group, LLC

    9 1601 Blake Street, Suite 310, Denver, CO 80202, appearing for

    10 the Defendant.

    11

    12

    13 * * * * *

    14 PROCEEDINGS

    15 THE COURT: The motion that is before the Court is the

    16 motion of the United States of America for preliminary

    17 injunctive relief. This is Docket No. 3. The Court has heard

    18 the testimony from witnesses on both sides of this matter and

    19 will now make the following conclusions of law, but I will

    20 start off with findings of fact.

    21 The testimony has shown that Mr. Scott is a person who

    22 engages in protests outside of the only public entrance to a

    23 facility can which among other types of services related to

    24 reproduction also offers abortion services. That facility is

    25 called Planned Parenthood of the Rocky Mountains. It's located

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    1 in Denver on Pontiac Street . The entrance to the facility is

    2 a public entrance that is open to people who drive in and out

    3 of the parking lot. On the other side is a driveway which

    4 could allow approximately three cars to go in at one time if

    5 they were close to one another. Of course, it appears to be

    6 designed just to have one car go in, one car go out at any

    7 given time.

    8 There is a yellow line that is painted that's parallel with

    9 the length of the sidewalk and that particular yellow line is

    10 the demarcation between the private property of PPRM and the

    11 public sidewalk. Mr. Scott typically and in the instances that

    12 have been identified in the complaint and in the instances that

    13 have been the subject of evidence today positions himself on

    14 the north side of the driveway on the public side of the yellow

    15 line. And in fact, there is no evidence that he goes over onto

    16 the Planned Parenthood side of that yellow line, but he

    17 positions himself on the north side and that gives him an

    18 opportunity to engage the drivers of vehicles that are either

    19 going into the facility or leaving the facility.

    20 For vehicles that are entering the facility, Mr. Scott,

    21 either holding a sign, the subject of the sign the testimony

    22 was may either have some words on it or the sign may have a

    23 photograph on it, both the words or the photograph relating to

    24 his message concerning abortion, approaches a vehicle. He may

    25 also have literature in his hand and attempts to engage the

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    1 driver of the vehicle.

    2 As I will discuss in more detail when I review each of the

    3 videos that have been admitted, Mr. Scott does not move in

    4 front of any of the vehicles. Instead, he approaches the

    5 driver's side and moves deliberately towards those vehicles on

    6 the driver's side. The effect of him doing so is that certain

    7 cars, although the testimony indicates not most cars, but some

    8 cars will slow down or a smaller subset will slow down, stop,

    9 and then Mr. Scott attempts to engage the driver of the vehicle

    10 in a conversation regarding his anti-abortion message.

    11 For those drivers who choose to talk to Mr. Scott, the

    12 conversation that he has with them may last for a relatively

    13 short period of time or it may last for several minutes. One

    14 of the videos shows a conversation that took place for over

    15 four minutes, and during that time that he is engaging a

    16 vehicle in the driveway the effect is to block at least a

    17 portion of the driveway to the facility.

    18 Mr. Cram testified today. He is a security guard and he

    19 said that one thing that he monitors at least to some extent is

    20 how long a particular vehicle may be stopped while Mr. Scott is

    21 communicating with the driver and if that car is stopped for a

    22 longer period of time, on some occasions Mr. Cram will go ask

    23 the driver to move forward or to exit the facility, pull over

    24 to the side of the street and have his conversation with

    25 Mr. Scott. Mr. Cram also testified that he occasionally asks

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    1 Mr. Scott to have conversations with the drivers of persons

    2 entering the facility over on the side of the road, but that

    3 Mr. Scott has not followed that particular recommendation.

    4 The United States has introduced six videos of incidents.

    5 Each of the six incidents that is the subject of the videos is

    6 mentioned in the United States' complaint, and let me talk

    7 about what findings I make after reviewing each of those

    8 videos. And what I will do is I will begin in chronological

    9 order.

    10 So the first one that I will talk about is marked as

    11 Government Exhibit No. 6 and it involves an incident that took

    12 place on December 16, 2009. And what that particular videotape

    13 shows is that a vehicle approached to enter the driveway.

    14 Mr. Scott moved forward to engage the driver. That particular

    15 car, as cars for some reason tend to do, made a very wide turn

    16 into the driveway of the facility. So when the car stopped to

    17 talk to Mr. Scott, the car was more in the middle of the

    18 driveway. Mr. Scott engaged in a apparent conversation with

    19 the driver of that vehicle. That conversation lasted for over

    20 four minutes.

    21 Towards the end of that conversation with the driver of the

    22 vehicle a car approaches from inside the facility and attempts

    23 to leave. And, in fact, Ms. Armstrong indicated that she was

    24 that person. And the car then needs to wait for a period of

    25 approximately 20 seconds before the car that Mr. Scott is

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    1 engaging in conversation with drives forward. And, in fact,

    2 what happens is that eventually she -- once the car moves

    3 forward, then Ms. Armstrong is able to drive past. What the

    4 tape shows is that after the vehicle was entering goes into the

    5 facility, Mr. Scott was talking to the person, actually backs

    6 away from the driveway and then Ms. Armstrong's vehicle exits

    7 the facility.

    8 The next incident is December 23rd, 2009, and this is

    9 Exhibit 5 of the government's exhibits. This is an incident

    10 that Mr. Cram testified that he witnessed. In this particular

    11 videotape, it shows that the conditions on that day were snowy

    12 and based upon the behavior of the car also icy. So what it

    13 shows is that a vehicle approaches from the south. It goes

    14 into a skid. It's skidding along past the driveway and heading

    15 towards the area where the defendant and another individual

    16 happen to be standing. And, in fact, because of the vehicle

    17 skidding, the other individual actually moves closer towards

    18 the driveway in what happens to be an attempt to make sure he

    19 doesn't get hit.

    20 Nothing in the videotape would show that the path that that

    21 vehicle took was in any way influenced by where Mr. Scott was

    22 standing. It appears as if, like other cars, it may not have

    23 seen the entrance or misgauged the road conditions, but in any

    24 event, the path that it traveled because of the skidding

    25 doesn't appear to be related in any way to where Mr. Scott or

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    1 the other individual for that matter are standing.

    2 Once the car comes to a stop, this is now somewhat past the

    3 driveway, Mr. Scott goes into the street and attempts to engage

    4 the occupant or occupants, can't tell how many people are in

    5 the car, whether anyone is in the passenger's side, but he

    6 approaches the passenger s

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