Supreme Court wades into Abortion issue AGAIN

[irishgrl]

Originally Posted by strandinthewind

From the first Article:

Part II -- General Concerns
Section 303 --expanding RICO - the ACLU has had a long-standing concern about the RICO statute in that it is so broad and creates First Amendment concerns by prosecuting people because of "guilt by association";

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I wrote a huge article on the damage done by the expansion of RICO from its original intent - I wish I could find it.

ok, now Im really curious: The ACLU states it is concerned about RICO because it creates FIRST AMENDMENT CONCERNS, (NOT 4th Amendment, you'll notice!)



Look, Im against unreasonable searches and seizures as much as the next person, but Im telling you the Patriot Act is FAR more invasive that what you've shown me so far....

[strandinthewind]

Originally Posted by irishgrl

Jason, I fail to see how an application of RICO with respect to anti-abortion protesters wreaking violence upon clinic patients constitutes gutting the 4th Amendment!!! Please explain how this is considered an unreasonable search or seizure? What is the connect here? DO speak UP!

RICO itself has gutted the Fourth Amendment. The discovery provisions within that statute are horrid and essentially the govt. can do anything it wants to you with just the mere suggestion by a third party that you have exhibited a pattern of racketeering activitities over state lines - oncluding essentially warrantless searches - which mirrors the Patriot Act. That is why I often content the Patriot Act is really not that big of a deviation from the current law. Also, under RICO, the govt. can essentially seize all your assets and never realy return them. How about them apples. That is why I hate RICO and think it should not be applied outside of the organized crime context in which it was originally written. But, for the sake of argument, protesting and harrassing an abortion clinic hardly appears to satisfy the criteria of RICO in any form.

[strandinthewind]

Here are some more articles:

http://www.aclu.org/SafeandFree/Safe...ID=12161&c=206

http://www.enterstageright.com/archi...202patriot.htm

http://sflaborcouncil.org/control/as...I%20report.pdf

http://billroggio.com/archives/2004/...tical_issu.php

http://www.omnicenter.org/justicecol...#usapatriotact

http://edition.cnn.com/2005/ALLPOLIT...3/patriot.act/

Not that many lay people know or care about RICO - but that is the source of all of this civil rights bruhaha today.

[strandinthewind]

As for the First Amendment and RICO:

PROTECTING ANTI-ABORTION PROTESTS, PROTECTS ALL
By CHARLES LEVENDOSKY
Casper Star-Tribune
On Feb. 26, a nearly unanimous U.S. Supreme Court protected the right of protest for anti-abortion demonstrators -- and for everyone else, as well.

The 8-to-1 decision (Scheidler v. National Organization for Women, Inc.) will not be popular with those who find the tactics of Operation Rescue and others who actively oppose legal abortion threatening, destructive and coercive.

The National Organization for Women filed a class action lawsuit against the Pro-Life Action Network (PLAN), Joseph Scheidler, Operation Rescue and several individuals, claiming a nationwide conspiracy to shut down abortion clinics through the use of extortion.

NOW had won their lawsuit at the federal district court level and at the U.S. Court of Appeals for the Seventh Circuit.

The district court entered a permanent nationwide injunction prohibiting the anti-abortion organizations from obstructing access to abortion clinics, from trespassing on clinic property, from damaging clinic property, or from using violence or threats of violence against the clinics, their employees or their patients. The appellate court upheld that injunction as well as the damages awarded by the jury which heard the case in the district court.

Scheidler and company appealed to the U.S. Supreme Court, and there the judicial tide turned.

Chief Justice William Rehnquist wrote the opinion for the high court. NOW had sued the anti-abortion groups asserting they had committed numerous acts of extortion within the meaning of a federal criminal law, the Hobbs Act. NOW also asserted that the groups' nationwide pattern of criminal activity violated the Racketeer Influenced and Corrupt Organizations Act (RICO).

The Hobbs Act defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."

In the decision, Rehnquist acknowledges: "There is not dispute in these cases that petitioners (Scheidler, et al.) interfered with, disrupted, and in some instances completely deprived respondents (NOW, et al.) of their ability to exercise their property rights."

Even the attorney for the anti-abortion groups readily admitted in oral argument that his clients' conduct was criminal, agreeing that his clients had committed trespass and the destruction of property, among other things.

However, the crux of the lawsuit rested on whether the anti-abortion groups had committed extortion. Rehnquist writes: "But even when their acts of interference and disruption achieved their ultimate goal of 'shutting down' a clinic that performed abortions, such acts did not constitute extortion because petitioners (Scheidler, et al.) did not 'obtain' respondents' (NOW, et al.) property."

Rehnquist describes the actions of the anti-abortion groups as a crime of coercion -- the use of force or threat of force to restrict another's freedom of action -- but not extortion.

Rehnquist sums up the high court's position: "Because we find that petitioners did not obtain or attempt to obtain property from respondents, we conclude that there was no basis upon which to find that they committed extortion under the Hobbs Act." Since there was no pattern of extortion, according to the high court, the severe penalties of RICO do not come into play. RICO requires a prior showing of and a conviction for a pattern of serious criminal activity.

RICO allows both criminal penalties and heavy civil liabilities. Both law enforcement and private citizens can bring action against those who engage in conduct covered by the act. One can receive a 20-year sentence for a single criminal violation of RICO. A private citizen can receive three times the actual damages suffered as well as attorneys' fees from a person who, in acting against the citizen, violated RICO.

Justice Ruth Bader Ginsburg in a short concurring opinion, which was joined by Justice Stephen Breyer, points out the dangers involved in using RICO. And this is really the heart of the matter. Ginsburg writes that a decision in favor of NOW would have ramifications far beyond the original intent of the RICO act.

In a footnote to the Ginsburg concurrence, she notes that at oral argument, the U.S. Solicitor General was asked: "Do you agree that your interpretation would have been applicable to the civil rights sit-ins?" He responded: "Under some circumstances, it could have if illegal force or threats were used to prevent a business from operating."

The use of RICO to punish protests with which we disagree would inevitably stifle all protests. NOW unwisely took an approach against anti-abortion activists that might have struck back like a snake. For example, women protesting against unfair labor practices or unequal pay -- if a few people in the protest were to engage in destructive acts -- could find themselves the target of a RICO prosecution.

The severity of RICO penalties, whether criminal or civil, when used against legitimate free speech activities like demonstrations, protests or marches would soon silence even the most significant voices of dissent. Often, it is through dissent that we hear the full spectrum of minority opinions.

The Supreme Court was correct in reversing the lower federal courts' rulings. In its decision, the high court ensured the right of protest for everyone across the social-political spectrum -- for now.

Unfortunately, the USA PATRIOT Act creates a new federal crime of "domestic terrorism" that extends to "acts dangerous to human life that are a violation of criminal laws" if they "appear to be intended to influence the policy of a government by intimidation or coercion."

Under the Patriot Act, would an anti-abortion protest fall under this new crime? The high court agreed that coercion was used by the protestors.

Does a march for peace in the nation's capital become an act of domestic terrorism if someone throws a rock through a window of a business? The march is certainly "intended to influence the policy" of the Bush administration. Does a march for peace of 250,000 individuals constitute "intimidation"?

The Supreme Court will undoubtedly face this issue in the near future. Let us hope the grit and respect for First Amendment activities that informed the Scheidler decision remain intact.


Copyright Casper Star-Tribune
March 2, 2003

http://fact.trib.com/1st.lev.protestnoextort.html
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He has a point unless you think no one should be able to protest an abortion clinic I think they have a Constitutional right to be there peacefully.

Here are some more:

http://www.fsu.edu/~crimdo/rico.html

http://www.religioustolerance.org/abo_rico.htm

[irishgrl]

Originally Posted by strandinthewind

I know and I am unsure that a mere threat is enough or should be enough to prosecute but certainly the battery they mentioned would be. A threat would perhaps under a harrassment type of statute though. But, people should not go to jail for five or so years for threatening an abortion clinic any more so than they should for threatening an individual on the street.

actually a threat IS enuff, take a look at the stuff I posted on page 2:

3. Extortion

What laypeople call extortion, lawyers call a violation of the Hobbs Act. The Hobbs Act states:

Whoever in anyway or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

I am not sure if the Hobbs Act is included in RICO.....if not, then this avenue of litigation may not pan out. If so, this may have legs.

[strandinthewind]

Originally Posted by irishgrl

actually a threat IS enuff, take a look at the stuff I posted on page 2:

it should not be - I mean what constitutes a threat - a peacful protest outside the clinic I cannot believe you are actually arguing this. I mean under your rationale, if you said something more than once on the net and it was a treat - well, they can prosecute you under RICO - that is scary and unfair.

[strandinthewind]

Originally Posted by irishgrl

actually a threat IS enuff, take a look at the stuff I posted on page 2:


I am not sure if the Hobbs Act is included in RICO.....if not, then this avenue of litigation may not pan out. If so, this may have legs.

3. Extortion

What laypeople call extortion, lawyers call a violation of the Hobbs Act. The Hobbs Act states:

Whoever in anyway or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

I think we are talking about two different things. Extortion is a crime. A threat is not for the most part. I mean I cannot call Burger King and threaten to blow them up. That is a crime and not one under RICO if I do it only once and within state lines (for the most part). But, what about if I call Burger King and say "If you do not stop this behavior, I am going to organize a national protest and your sales will fall to nothing and we will not relent until you comply" - that certainly fits the borad def. in the Hobbs Act and perhaps a liberal def. of RICO - but where is the crime? Same with an abortion clinic - I can organize 1,000 people everyday to go and peacefuly protest within a safe distance from the clinic in a direct effort to thwart that clinics patrons and I have committed no crime and, in fact, an participating in Constitutionally protected speech..

[irishgrl]

Even the attorney for the anti-abortion groups readily admitted in oral argument that his clients' conduct was criminal, agreeing that his clients had committed trespass and the destruction of property, among other things.

WHY weren't they prosecuted then? If the Attorney can stand up and say that his client's conduct was criminal, and Rehnquist states the conduct was criminal, WHERE IS THE PENALTY? WHERE IS THE OUTRAGE? So much for the state and federal laws that are supposed to protect us....

Im still not sure I follow your assertion that RICO itself guts the 4th Amendment...from what I read, for a person to be prosecutable under RICO, they have to have been charged/convicted of the underlying crimes of extortion/bribery/robbery etc....so, it looks to me like a RICO conviction is only possible if the core crime has been successfully litigated FIRST

[strandinthewind]

Originally Posted by irishgrl

WHY weren't they prosecuted then? If the Attorney can stand up and say that his client's conduct was criminal, and Rehnquist states the conduct was criminal, WHERE IS THE PENALTY? WHERE IS THE OUTRAGE? So much for the state and federal laws that are supposed to protect us....

Im still not sure I follow your assertion that RICO itself guts the 4th Amendment...from what I read, for a person to be prosecutable under RICO, they have to have been charged/convicted of the underlying crimes of extortion/bribery/robbery etc....so, it looks to me like a RICO conviction is only possible if the core crime has been successfully litigated FIRST

Often RICO is never prosecuted. It is just alleged so the warrantless searches can happen and the property seized.

As for the lack of prosecution, they very well may have been and that prosecusion was not part of this case. But, if they were not, they should have been. But, the lack of prosecution under a correct method cannot warrant or validate an improper prosecution under RICO.

[irishgrl]

Originally Posted by strandinthewind

it should not be - I mean what constitutes a threat - a peacful protest outside the clinic I cannot believe you are actually arguing this. I mean under your rationale, if you said something more than once on the net and it was a treat - well, they can prosecute you under RICO - that is scary and unfair.

actually the terminology went a bit further, as in threat that made another fear for his/her safety...a "threat" in LAW is more than just saying the words, it also implies fear of imminent harm.....much like the common misconception people have of assault vs. battery, where an assault is a threat of harm and the battery is the actual harm.....

by the way: protests outside abortion clinics are RARELY peaceful. This is WAR to these folks.

[irishgrl]

Originally Posted by strandinthewind

Often RICO is never prosecuted. It is just alleged so the warrantless searches can happen and the property seized.

As for the lack of prosecution, they very well may have been and that prosecusion was not part of this case. But, if they were not, they should have been. But, the lack of prosecution under a correct method cannot warrant or validate an improper prosecution under RICO.

well, it remains to be seen whether a RICO prosecution is improper...I also read that seldom do these cases survive a motion to dismiss.......

[strandinthewind]

Originally Posted by irishgrl

. . .

by the way: protests outside abortion clinics are RARELY peaceful. This is WAR to these folks.

then the ones that are not should be prosecuted under the local law. But, you cannot deny someone their right to protest under the First Amendment just because someone else does not do it peacefully. -- are you actually that nuts on abortion that you are arguing that

[strandinthewind]

Originally Posted by irishgrl

well, it remains to be seen whether a RICO prosecution is improper...I also read that seldom do these cases survive a motion to dismiss.......

No - it is improper. Go read the statute and tell me how it possibly applies here. There is no racketeering - period. It is the exercise of free speech that if not peaceful - must be prosecuted under the appropriate law. Now, if they found a network in two states that was advocating specific violence or other illegal activity and there was a clear and provable pattern of that - I'd say fire away under RICO - but I am not sure they showed that here, though I read this case a long time ago.

[strandinthewind]

Originally Posted by irishgrl

. . . I also read that seldom do these cases survive a motion to dismiss.......

Thus, they prosecution uses a meritless charge to get around the Fourth Amendment - which is just wrong and horrifying to me. I mean if I do not like it when the prosecution does it in regular cases, I have to not like it in this case.

[irishgrl]

Originally Posted by strandinthewind

I think we are talking about two different things. Extortion is a crime. A threat is not for the most part. I mean I cannot call Burger King and threaten to blow them up. That is a crime and not one under RICO if I do it only once and within state lines (for the most part). But, what about if I call Burger King and say "If you do not stop this behavior, I am going to organize a national protest and your sales will fall to nothing and we will not relent until you comply" - that certainly fits the borad def. in the Hobbs Act and perhaps a liberal def. of RICO - but where is the crime? Same with an abortion clinic - I can organize 1,000 people everyday to go and peacefuly protest within a safe distance from the clinic in a direct effort to thwart that clinics patrons and I have committed no crime and, in fact, an participating in Constitutionally protected speech..

if these protester's limited their activities to SPEECH alone, this would be a non issue. Unfortunately they do NOT limit their activity to speech alone (protected or otherwise) When patients are accosted, shoved, beat unconscious, then these nutjobs SHOULD BE PROSECUTED, but every case that broaches the subject of anti-abortion protesters seems to let these folks off seemingly without a scratch...in fact the ban on protesting has been lifted so that now protesters can be closer than ever as they exercise their FIRST AMENDMENT RIGHTS which can include blocking the doorway etc....this just makes me sick because at NO OTHER CLINIC do you have people interfering with patients or their caregivers