UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------------------------ People of the State of New York, by ERIC T. SCHNEIDERMAN, Attorney General of the State of New York,

Plaintiff, REPLY IN SUPPORT OF MOTION TO DISMISS BY GRIEPP DEFENDANTS

v. CAUSE NO. 1:17-CV-3706 Kenneth Griepp, Ronald George, Patricia Musco, Randall Doe, Osayinwense N. Okuonghae, Anne Kaminsky, Brian George, Sharon Doe, Deborah M. Ryan, Angela Braxton, Jasmine LaLande, Dorothy Rothar, Prisca Joseph, and Scott Fitchett, Jr. Defendants. ------------------------------------------------------ Defendants Kenneth Griepp, Ronald George, Patricia Musco, Randall Thomas (aka

“Randall Doe”), Osayinwense N. Okuonghae, Anne Kaminsky, Brian George, Sharon Richards

(aka “Sharon Doe”), Deborah M. Ryan, and Prisca Joseph (collectively “the Griepp

Defendants”), by and through counsel, submit this Reply in Support of their Motion to Dismiss

Plaintiff’s Complaint. As grounds, they state:

i

TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1

ARGUMENT .................................................................................................................................. 2

I. PLAINTIFF CANNOT ESTABLISH PARENS PATRIAE STANDING. ........................ 2

II. FACE IS UNCONSTITUTIONAL. ................................................................................... 4

A. On its face. .................................................................................................................... 4

B. As applied. .................................................................................................................... 7

III. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN ...... 8

BE GRANTED. .......................................................................................................................... 8

A. The Complaint Fails to Provide Sufficient Particularity with respect to the ................ 8

Claims Against each Defendant. ............................................................................................. 8

1. Allegations of “force.” .............................................................................................. 9

2. Allegations of “threat of force.”.............................................................................. 11

3. Allegations of “physical obstruction.” .................................................................... 14

4. Allegations of “following and harassing.” .............................................................. 16

5. Extrinsic evidence. .................................................................................................. 18

B. Prior Cases Uniformly included Specific Times, Dates, and Circumstances. ............ 19

CONCLUSION ............................................................................................................................. 21

ii

TABLE OF AUTHORITIES

Cases

American Elec. Power v. Conn., 564 U.S. 410 (2011) ................................................................... 2

American Life League, Inc. v. Reno, 47 F.3d 642, 649 (4th Cir.), cert. denied, 516 U.S. 809

(1995) .......................................................................................................................................... 4

Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001) ................................................... 9

Cahaly v. LaRosa, 796 F.3d 399, 405 (4th Cir. 2015) .................................................................... 4

Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) .................................... 2, 18

Cheffer v. Reno, 55 F.3d 1517, 1521 (11th Cir. 1995) ................................................................... 4

Corley v. Rosewood Care Center, Inc. of Peoria, 152 F.Supp.2d 1099, 1108 (C.D.Ill. 2008) .... 10

Digital Music Antitrust Litig., 812 F. Supp. 2d 390, 417 (S.D.N.Y. 2011) .................................... 9

Eaves v. Designs for Finance, Inc., 785 F.Supp.2d 229, 244 (S.D.N.Y. 2011) ..................... 18, 19

Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) ............................................................... 9

Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) ..................................................................... 19

Ferro v. Ry. Express Agency, Inc., 296 F.2d 847, 851 (2d Cir. 1961) ............................................ 9

Free Speech Coalition, Inc. v. Attorney General United States of America, 825 F.3d 149, 160 n.7

(3d Cir. 2016) .............................................................................................................................. 4

H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 238-39 (1989) ......................................... 10

Hill v. Colorado, 530 U.S. 703, 745 (2000) ............................................................................... 5, 6

Justice v. Hoke, 90 F.3d 43, 48 (2d Cir. 1996) ............................................................................... 3

iii

Ludwig's Drug Store, Inc. v. Forest City Enters., 2016 U.S. Dist. LEXIS 28038 (E.D.N.Y. 2016)

..................................................................................................................................................... 8

Luis v. United States, 136 S.Ct. 1083, __ U.S. __, 194 L.Ed.2d 256, 272 (2016) .......................... 5

McCullen v. Coakley, __U.S. __, 134 U.S. 2518, 2546 (2014) .......................................... 6, 16, 17

New York v. Utica City Sch. Dist., 177 F.Supp.3d 739, 747 (N.D.N.Y. 2016) .............................. 3

Norton v. City of Springfield, 806 F.3d 411, 412 (7th Cir. 2015) ............................................... 4, 5

People v. Cain, 418 F.Supp.2d 457 (S.D.N.Y. 2006) ............................................................ passim

People v. Golb, 23 N.Y.3d 455 (Ct. App. 2014)..................................................................... 17, 18

People v. Kraeger, 160 F.Supp.2d 360 (N.D.N.Y. 2001) ........................................... 12, 14, 15, 20

People v. Operation Rescue National, 273 F.3d 184, 195 (2d Cir. 2001) ............................. passim

People v. Perez, No. 2015NY063390, 2016 N.Y. Misc. LEXIS 1529, at *6 (N.Y. City Crim. Ct.

Apr. 28, 2016) ..................................................................................................................... 17, 18

People v. Peter & John's Pump House, Inc., 914 F.Supp. 809, 811 (N.D.N.Y. 1996) .................. 3

R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (8th Cir. 1996) ..................................................... 4, 6

Reed v. Town of Gilbert, __U.S.__, 135 S.Ct. 2218 (2015) ................................................ 4, 6, 17

Sedima, S.P.R.I. v. Imrex Co., Inc., 473 U.S. 479, 496 n.14 (1985) ............................................ 10

Snapp v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982) .................................................. 2, 3

State of Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309, 335 (2d Cir. 2009) ......... 2

Teamsters v. United States, 431 U.S. 324, 336 (1977) ................................................................. 10

Terminello v. City of Chicago, 337 U.S. 1, 4 (1949) .................................................................... 16

Trombley v. O'Neill, 929 F.Supp.2d 81, 100 (N.D.N.Y. 2013) ...................................................... 1

iv

United States v. Abel, 469 U.S. 45, 52 (1984) ................................................................................ 3

United States v. Dinwiddie, 76 F.3d 913, 921 (8th Cir. 1996).................................................. 4, 14

United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir.), cert. denied, 429 U.S. 1022 (1976) ...... 11

United States v. Malik, 16 F.3d 45, 49 (2d Cir.), cert. denied, 513 U.S. 968 (1994) ................... 11

United States v. Wilson, 154 F.3d 658, 663 (7th Cir. 1998), cert. denied, 525 U.S. 1081 (1999) . 4

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ...................................................................... 4

Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y.2011) ........................... 2, 18

Wolin v. Port of N.Y. Auth., 392 F.2d 83, 91 n.10 (2d Cir.), cert denied, 393 U.S. 940 (1968) ... 16

Zhang v. Holder, 594 Fed.Appx. 20, 22 (2d Cir. 2015) ................................................................ 10

Statutes

Freedom of Access to Clinic Entrances Act, 18 U.S.C. §248 ........................................................ 1

NYC Clinic Access Act ................................................................................................................ 16

Title X, 18 U.S.C. § 3575(e) ......................................................................................................... 10

Other Authorities

A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 192 (2012) .................... 5

J. Bartlett, Familiar Quotations 550 (16th ed. 1992) ...................................................................... 6

1

PRELIMINARY STATEMENT

Plaintiff distorts and mischaracterizes these Defendants’ arguments on several fronts, and

ignores certain arguments altogether. For example, the Attorney General (“AG”) claims that he

is “perplexed” by the First Amendment arguments of these Defendants, because the Freedom of

Access to Clinic Entrances Act, 18 U.S.C. §248 (“FACE”), “provides ample opportunity” for

peaceful expressive activities. Pltf’s Opp. at 1-2. While the statute does purport to address only

conduct, as construed and applied by the AG, it draws a bullseye squarely on protected conduct

and pure speech. The line between conduct and speech in this context is thin to begin with; in the

hands of the AG, it is erased altogether.1 Again, Plaintiff does not even acknowledge these

Defendants’ argument concerning the Supreme Court’s dramatic revision of the content-

neutrality analysis, under which FACE is rendered content-based. Neither does Plaintiff

recognize the First Amendment rights of the clinic clients to receive the information these

Defendants offer them. But to ignore the argument is not to rebut it; Plaintiff has effectively

conceded these points. Se, e.g., Trombley v. O'Neill, 929 F.Supp.2d 81, 100 (N.D.N.Y. 2013) (“at

the very least, Defendants have met the lightened burden that was created by Plaintiff’s failure to

respond to this argument for dismissal”).

Again, in response to the argument that the Complaint fails to set forth the claims against

each of these Defendants with the requisite specificity, the AG takes the unusual (and improper)

step of attempting to rely on evidence submitted in support of his motion for preliminary

injunction. See Pltf’s Opp. at 10-12. Such tactics are impermissible at this stage of the

1 The AG first grossly mischaracterizes and then purports to “reject” Defendants’ “contention” that it must first obtain a criminal conviction before bringing this civil suit. Pltf’s Opp. at 3 n.5. Defendants contend no such thing. Rather, they point to the undisputed fact that despite dozens of calls to the police over the years that they have been ministering at the Choices clinic, not one police officer has ever issued a citation, let alone an arrest warrant, to any Defendant. This uncontroverted evidence strongly suggests that there has been no wrongdoing, not, as the AG imagines, that existing law is somehow inadequate to protect clinic clients. See ECF 80 at 12-13, 25.

2

proceedings, and this evidence should be stricken. See, e.g., Weiss v. Inc. Vill. of Sag Harbor,

762 F.Supp.2d 560, 567 (E.D.N.Y.2011) (citation omitted) (setting forth the narrow exceptions

to general rule forbidding consideration of extrinsic evidence in deciding a motion to dismiss);

accord Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). Plaintiff’s gambit

only underscores the lack of specificity in Plaintiff’s Complaint.

In sum, the Griepp Defendants’ motion to dismiss should be granted. Plaintiff lacks

standing, FACE and the related state and local laws are unconstitutional both on their face and as

applied, and the Complaint fails to state a claim upon which relief can be granted.

ARGUMENT

I. PLAINTIFF CANNOT ESTABLISH PARENS PATRIAE STANDING.

The Griepp Defendants incorporate by reference the arguments advanced by Defendants

Braxton and LaLande in their reply briefs as to standing. ECF 73 and 86. In addition, the AG is

incorrect to complain that his unwavering allegiance to abortion rights, pointed out by these

defendants, has “no bearing on the merits of this case.” Pltf’s Opp. at 1. As noted in Defendants’

Memorandum in Support of their Motion to Dismiss, the AG may properly assert parens patriae

standing only if he shows that the State has an interest “‘apart from the interests of particular

private parties.’” ECF 80 at 11 (quoting State of Connecticut v. American Elec. Power Co., Inc.,

582 F.3d 309, 335 (2d Cir. 2009), rev’d on other grnds., American Elec. Power v. Conn., 564

U.S. 410 (2011) (quoting Snapp v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)). The

AG’s vocal adherence to the cause of abortion renders him unable to distinguish the State’s

interests from those of the Choices clinic and its millionaire abortionist owner, Merle Hoffman.

See ECF 75-3, Ex. A to LaLande Memo. in Supp. of Mot. to Dismiss. In effect, the AG seeks

3

improperly to convert the parens patriae doctrine into the friends patriae doctrine.2 But

“[p]arens patriae standing in American courts must involve more than a state merely stepping in

to represent the interests of particular citizens.” People v. Peter & John's Pump House, Inc., 914

F.Supp. 809, 811 (N.D.N.Y. 1996) (Pooler, D.J.) (citing Alfred L. Snapp & Son, Inc. v. Puerto

Rico ex rel. Barez, 458 U.S. 592, 600 (1982)); see also New York v. Utica City Sch. Dist., 177

F.Supp.3d 739, 747 (N.D.N.Y. 2016) (same)).

The AG contends that these Defendants overlook the state’s quasi-sovereign interest in

protecting the right to abortion. Pltf’s Opp. at 3. The AG misunderstands these Defendants’

argument: the point is not that the state has no interest in protecting an a-textual so-called “right”

to abortion, but rather that the state has at least an equal and arguably a greater interest in

protecting the explicit textual rights of its citizens to free speech, free press, free association, and

free exercise of religion enshrined in the very first amendment to the Constitution. The AG

persistently and relentlessly denigrates and ignores these fundamental rights in his zeal to further

his abortion rights agenda. As such, he is not properly exercising his parens patriae authority.

Parens patriae reflects “the common-law principle that a sovereign, as ‘parent of the country,’

may step in on behalf of its citizens to prevent injury to those who cannot protect themselves.”

New York v. Utica City Sch. Dist., 177 F.Supp.3d 739, 747 (internal quotation marks and

citations omitted). The AG’s treatment of the Defendants is more akin to the treatment of a

disfavored stepchild, rendering him without proper parens patriae standing to prosecute this

Complaint.

2 Evidence of the Attorney General’s hostility against these Defendants and pro-life advocates generally may also be relevant on the issue of bias. “Proof of bias is almost always relevant.” United States v. Abel, 469 U.S. 45, 52 (1984); see also Justice v. Hoke, 90 F.3d 43, 48 (2d Cir. 1996) (“[E]xtrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground.”) (internal quotation marks and citation omitted). While the AG is not a witness, several of his employees are, and bias permeates and colors everything about the AG’s case, from his scandalous and unprofessional rhetoric to his choice of witnesses and “objective” observers.

4

II. FACE IS UNCONSTITUTIONAL.

A. On its face. In his response to these Defendants’ contention that FACE is unconstitutional, the AG

fails even to mention, let alone address, the argument concerning Reed v. Town of Gilbert3, in

which the Supreme Court revised the analysis for determining whether a law is content-based.

Instead, the AG chooses to rely upon dated cases that employ a flawed and now-defunct

mechanism by which to assess content-neutrality. See Pltf’s Opp. at 5-6. In fact, “Reed represents

a drastic change in First Amendment jurisprudence.” Free Speech Coalition, Inc. v. Attorney

General United States of America, 825 F.3d 149, 160 n.7 (3d Cir. 2016) (finding portions of

Child Protection and Obscenity Enforcement Act of 1988 presumptively unconstitutional and

subject to strict scrutiny under Reed); accord, Cahaly v. LaRosa, 796 F.3d 399, 405 (4th Cir.

2015) (noting that Reed “conflicts with, and therefore abrogates, our previous descriptions of

content neutrality”); Norton v. City of Springfield, 806 F.3d 411, 412 (7th Cir. 2015) (finding

ordinance content-based and reversing prior panel decision, decided before Reed, that found

ordinance content-neutral; “Reed understands content discrimination differently”).

Concurring in the reversal of the prior panel decision in Norton, Judge Manion observed

that “Reed overrules Ward [v. Rock Against Racism, 491 U.S. 781 (1989)” with respect to the

content-based analytical framework. Norton, 806 F.3d 411, 413.4 He went on to state that “Reed

now requires any regulation of speech implicating religion or abortion to be evaluated as

3 __U.S.__, 135 S.Ct. 2218 (2015). 4 In fact, the cases upholding FACE as content-neutral relied upon the now overruled Ward analysis. See, e.g., American Life League, Inc. v. Reno, 47 F.3d 642, 649 (4th Cir.), cert. denied, 516 U.S. 809 (1995) (applying Ward analysis); Cheffer v. Reno, 55 F.3d 1517, 1521 (11th Cir. 1995) (relying on American Life League and adopting its rationale); United States v. Dinwiddie, 76 F.3d 913, 921 (8th Cir. 1996) (relying on R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (8th Cir. 1996), which in turn relied on Ward); United States v. Wilson, 154 F.3d 658, 663 (7th Cir. 1998), cert. denied, 525 U.S. 1081 (1999) (also relying on R.A.V.).

5

content-based and subject to strict scrutiny, just like the aforementioned viewpoint-based

restrictions covering more narrow contours of speech.” Id. (emphasis added). FACE and its New

York equivalent are just such regulations of speech implicating abortion; they should accordingly

be deemed content-based and subjected to strict scrutiny, which they cannot survive.

The AG also argues that FACE “is clearly a regulation of conduct” and so easily passes

constitutional muster. Pltf’s Opp. at 6. That argument once again fails to take into account the

reality of how FACE operates and recent case law. “The law has long recognized that the

‘[a]uthorization of an act also authorizes a necessary predicate act.’” Luis v. United States, 136

S.Ct. 1083, __ U.S. __, 194 L.Ed.2d 256, 272 (2016) (Thomas, J., concurring) (striking as

unconstitutional a federal statute allowing court to freeze certain assets of a defendant accused of

violating federal healthcare or banking laws because it effectively precluded his ability to

exercise his Sixth Amendment right to retain counsel of his choice) (quoting A. Scalia & B.

Garner, Reading Law: The Interpretation of Legal Texts 192 (2012)). “Constitutional rights thus

implicitly protect those closely related acts necessary to their exercise.” Id.

As the late Justice Scalia presciently observed, “[t]here comes a point . . . at which the

regulation of action intimately and unavoidably connected with [a right] is a regulation of [the

right] itself.” Hill v. Colorado, 530 U.S. 703, 745 (2000) (Scalia, J., dissenting). That point has

been reached – and exceeded – here. “When applied, as it is here, at the entrance to medical

facilities, it is a means of impeding speech against abortion.” Id. at 745; see also People v.

Operation Rescue National, 273 F.3d 184, 195 (2d Cir. 2001) (hereafter “People v. ORN”)

(courts must “remain mindful . . . of the fact that an erroneous application of F.A.C.E. threatens

to impinge legitimate First Amendment activity.”).

6

The AG also suggests that FACE is constitutional because it restricts all people who

obstruct those seeking or providing abortions, regardless whether they are pro-life or not. Pltfs’

Opp. at 5. This argument is but a hollow shell, as Justice Scalia argued in dissent in Hill:

The Court’s confident assurance that the statute poses no special threat to First Amendment freedoms because it applies alike to “used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries,” ante, at 723, is a wonderful replication (except for its lack of sarcasm) of Anatole France’s observation that “[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges . . . .” J. Bartlett, Familiar Quotations 550 (16th ed. 1992). This Colorado law is no more targeted at used car salesmen, animal rights activists, fundraisers, environmentalists, and missionaries than French vagrancy law was targeted at the rich.

Hill, 530 U.S. at 744. The Supreme Court in R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1996),

wrote that “[w]here the government does not target conduct on the basis of its expressive

content, acts are not shielded from regulation merely because they express a discriminatory idea

or philosophy.” Id. (emphasis added). Here, FACE does target conduct on the basis of its

association with a particular expressive content, namely attempts to persuade women not to abort

their children. While Justice Scalia’s opinion was a dissent in Hill, that case was decided by a

razor thin 5-4 majority over a vigorous dissent, and its continued viability is an open question

because its rationale has been thoroughly undermined. See, e.g., McCullen v. Coakley, __U.S.

__, 134 U.S. 2518, 2546 (2014) (Scalia, J., dissenting) (stating that it can and should be argued

that Hill was overruled sub silentio in McCullen).

In the same vein, Congress’ and the pre-McCullen courts’ blithe assurances that FACE’s

prohibitions apply alike to others as well as pro-life advocates is indistinguishable from Anatole

France’s criticism (cited by Justice Scalia above) of French laws targeting vagrancy, and is

exposed, under the analysis now required by Reed, as a content-based regulation of speech. A

law enforcement officer cannot simply arrest someone who blocks another on the sidewalk

7

outside an abortion clinic and charge him with a FACE violation; he must first ascertain what the

motive of the perpetrator was, and then whether the person blocked was seeking or providing

reproductive health services. This inquiry renders the law content-based and subject to strict

scrutiny.

B. As applied. Plaintiff’s response to these Defendants’ as-applied arguments is in essence a simple

denial. See Pltfs’ Opp. at 6-8. Of course, Plaintiff cannot deny that the Complaint repeatedly

references the expressive activities of these Defendants, such as the display of signs, the time-

honored practice of leafleting, and multiple references to pure speech. He claims instead that his

references to the content of Defendants’ message is merely for the purpose of establishing the

intent required by FACE. Id. at 7. But this claim only highlights again (a) the impossibility of

separating Defendants’ conduct from their speech, and (b) the content-based nature of the inquiry

by law enforcement. This case, more than any other ever brought under FACE, underscores the

law’s design as targeting pro-life speech; the actions of which Plaintiff complains were all

undertaken for the purpose of communicating their message. They approach women – as the

Complaint concedes -- “in an attempt to disseminate . . . literature.” See, e.g., Complaint at ¶16.

Again, Defendants sometimes lean into vehicles “so as to provide . . . literature”). Id. at ¶17; see

also id. at ¶¶18-19, and the Complaint references in fn. 16 infra. Consequently FACE and the

related state and local laws upon which Plaintiff relies are unconstitutional as applied here.

8

III. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. These Defendants incorporate by reference the arguments of Defendants Braxton and

LaLande herein. ECF 73 and 86.

A. The Complaint Fails to Provide Sufficient Particularity with respect to the Claims Against each Defendant. Plaintiff’s Complaint consists in 110 paragraphs and 32 pages, yet only nine (9)

paragraphs contain any specific allegations against any of the Griepp Defendants, and two (2) of

those fail to include dates. See ECF 1, ¶¶51, 52, 56-58, 60, 62, 63, and 92. Five (5) of the Griepp

Defendants are not mentioned in a specific allegation at all.5 Of the five (5) Griepp Defendants

against whom specific allegations are made, three (3) are mentioned only once.6 This amounts to

a total of less than two (2) specific incidents per year, and less than one (1) per Defendant over

the entire five years of their ministry. Plaintiff claims that the lack of specifics is not fatal

because he is alleging a pattern. Pltf’s Opp. at 9. As a matter of law, however, these isolated

incidents are insufficient to establish a pattern or practice, see infra at 11-12, and are likewise

inadequate to support a claim for injunctive relief. Indeed, even the allegations against

Defendants accused of more than one specific violation are woefully defective, as shown below.

In addition, Plaintiff fails even to acknowledge Defendants’ argument that the criminal

overtones of FACE require a higher standard of specificity in pleading in order to give each

defendant enough notice of the individual claims against him or her to prepare a defense. See

ECF 80 at 24; see also Ludwig's Drug Store, Inc. v. Forest City Enters., 2016 U.S. Dist. LEXIS

28038 (E.D.N.Y. 2016), at p. 28-29. As this Court explained in that case: 5 The five against whom no specific allegation is lodged are Kenneth Griepp, Patricia Musco, Osayinwense Okuonghae, Brian George, and Deborah Ryan. 6 The three Griepp Defendants against whom only a single specific allegation is made are Sharon Richards (¶52), Anne Kaminsky (¶60, which is undated), and Prisca Joseph (¶62).

9

Rule 8(a) of the Federal Rules of Civil Procedure “does not demand that a complaint be a model of clarity or exhaustively present the facts alleged.” Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001). However, at a minimum the complaint must, “give each defendant ‘fair notice of what the plaintiff's claim is and the ground upon which it rests.’” Id. (quoting Ferro v. Ry. Express Agency, Inc., 296 F.2d 847, 851 (2d Cir. 1961)). This standard is not satisfied “[b]y lumping all the defendants together in each claim and providing no factual basis to distinguish their conduct.” Id. at 34. Rather, a complaint should provide “specification of any particular activities by any particular defendant.” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007); see In re Digital Music Antitrust Litig., 812 F. Supp. 2d 390, 417 (S.D.N.Y. 2011) (“Although Plaintiffs argue that they alleged that the [p]arent [c]ompanies were directly involved in the alleged conspiracy, a reading of the complaint indicates otherwise. The complaint alleges direct involvement of the [p]arent [c]ompanies by way of generic references to ‘defendants.’ This approach is insufficient.” (internal citations omitted)).

Id. Plaintiff’s Complaint does not comport with this standard.

1. Allegations of “force.”

With respect to allegations of force, Plaintiff asserts that its allegations at Compl. ¶¶ 17-

24, 28, and 50-54 give adequate notice to the Griepp Defendants. They do not. ¶¶ 17-24 and 28

introduce each of the Griepp Defendants in almost identical conclusory and general terms. Each

paragraph intones: “On a weekly [or bi-monthly in the case of Sharon Richards] basis since 2012

[or another year] [the defendant] “has engaged in illegal conduct,” and proceeds to set out stock

phrases such as “intentionally colliding,” “shoving,” “bumping,” but the paragraphs never

indicate any specifics such as when or where such conduct occurred, or any surrounding

circumstances or context. Such allegations give insufficient notice to the Griepp Defendants of

what alleged acts of force they engaged in and must defend against.

Plaintiff attempts to paper over this pleading defect by stating that the Complaint “also

offers two representative incidents concerning force.” Pltf’s Opp. at 13 (citing ¶¶ 51 and 52,

referencing Ronald George and Sharon Doe). But these two incidents -- the only ones cited

against the Griepp Defendants over all of the many years covered by the Complaint -- certainly

do not give the other Griepp Defendants adequate notice to permit a defense against Plaintiff’s

generalized and conclusory allegations of force. And the incidents are insufficiently pled in

10

themselves, for they do not allege the required element of intentionality in circumstances -- a

shove of an escort “to reach a patient” (¶ 51) and “follow[ing] a patient. . . so closely. . . that

defendant stepped on the patient’s sandal. . .” (¶ 52) -- that strongly suggest not intentional force

but instead isolated, inadvertent contact. Inadvertent contact is not prohibited. See, e.g., People v.

Cain, 418 F.Supp.2d 457, 474 (inadvertent contact fails to satisfy intent requirement).

Plaintiff’s attempt to overcome the lack of specificity by claiming he has pled a “pattern

of conduct” is similarly unavailing. Pltf’s Opp. at 9. “A ‘pattern . . . consists of repeated, discrete

. . . acts . . . that (1) have a relationship to each other and (2) sufficient continuity to show an

ongoing threat of continued . . . activity.’” Corley v. Rosewood Care Center, Inc. of Peoria, 152

F.Supp.2d 1099, 1108 (C.D.Ill. 2008) (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S.

229, 238-39 (1989) (internal quotation marks and citation omitted)). “A pattern is not formed by

sporadic activity.” H.J. Inc., 492 U.S. at 239 (internal quotation marks and citation omitted).

Although these cases involved racketeering, the principles regarding pattern evidence apply with

equal force outside the context of RICO claims. See, e.g., Sedima, S.P.R.I. v. Imrex Co., Inc.,

473 U.S. 479, 496 n.14 (1985) (quoting Congress’ definition of pattern in context of Title X, 18

U.S.C. § 3575(e): “[C]riminal conduct forms a pattern if it embraces criminal acts that have the

same or similar purposes, results, participants, victims, or methods of commission, or otherwise

are interrelated by distinguishing characteristics, and are not isolated events.”); Teamsters v.

United States, 431 U.S. 324, 336 (1977) (plaintiffs must prove “more than the mere occurrence

of isolated or accidental or sporadic discriminatory acts” to prove discrimination in hiring)

(internal quotation marks omitted); Zhang v. Holder, 594 Fed.Appx. 20, 22 (2d Cir. 2015)

(“sporadic, localized harassment” insufficient to establish pattern of religious persecution).

11

Here, Plaintiff alleges only a single specific instance of alleged wrongdoing against each

Defendant over a period of five years and more. The incidents alleged are not even sporadic;

they are merely isolated incidents that do not begin to meet the requirements for pattern or

practice evidence. Even where Plaintiff includes more than one specific allegation, as against

Defendant Ronald George, they are either protected speech (as in ¶¶56 and 57) or wholly

dissimilar and isolated incidents (¶¶51 and 92) such that no pattern can be inferred.7 As such,

Plaintiff has failed to state a claim, and the Complaint should be dismissed.

2. Allegations of “threat of force.”

The Complaint also fails to state a claim that the Griepp Defendants have made threats of

force. As the Second Circuit explained in People v. ORN:

When determining whether a statement qualifies as a threat for First Amendment purposes, a district court must ask whether ‘the threat on its face and in the circumstances in which is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution. . .’. United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir.), cert. denied, 429 U.S. 1022 (1976). Although proof of the threat’s effect on its recipient is relevant to this inquiry, United States v. Malik, 16 F.3d 45, 49 (2d Cir.), cert. denied, 513 U.S. 968 (1994), a court must be sure that the recipient is fearful of the execution of the threat by the speaker (or the speaker’s co-conspirators). Thus, generally, a person who informs someone that he or she is in danger from a third party has not made a threat, even if the statement produces fear.

273 F.3d 184, 196 (emphasis added). Each of the Complaint’s seven (7) allegations against the

Griepp Defendants (¶¶ 56 - 63) fails to satisfy this standard. As a matter of law, ¶¶ 56, 57, and

7 In fact, in ¶92 Plaintiff attempts improperly to attribute the actions of an unknown passerby to Mr. George. The law has long condemned the concept of guilt by association. See, e.g., National Association for the Advancement of Colored People, 458 U.S. 886, 918-19 (1982) (“The First Amendment . . . restricts the ability of the State to impose liability on an individual solely because of his association with another.”); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 178 (1951) (Douglas, J., concurring) (“guilt by association [is] one of the most odious institutions of history”).

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588 contain no threat because each statement was not unequivocal, unconditional, immediate, or

specific as to the person allegedly threatened.9 Moreover, the source of any fear occasioned by

the statement was a third party, not the speaker. The alleged threat in ¶6010 was likewise unspecific

as to the speaker. “[O]ne of the Defendants” yelled out the name and address of a Choices staff member.

There is no allegation that Defendant Anne Kaminsky made the statement. Thus a third party was

apparently the cause of the staffer’s alleged fear. Anne Kaminsky is alleged to have informed the person

that her name was “on a website devoted to anti-abortion activity, and that Kaminsky could remove her

name from the website, provided that the staff member ceased working at Choices.” But such a statement

is not a threat, let alone an unequivocal statement that “convey[s] a gravity of purpose and imminent

prospect of execution.” People v. ORN, 273 F.2d at 196.

8 ¶56: “For example, in April of 2016, an altercation between two men unrelated to the clinic occurred on the sidewalk outside of Choices. One aggressor pulled out a knife, prompting the clinic escorts to retreat into the building while the anti-choice protesters remained outside. In response to the incident, Defendant Randall Doe taunted the escorts, ‘you can die any minute.’” ¶57: “On April 16, 2016, Defendant Ronald George warned clinic escorts, ‘On 9/11, 3,000 people didn’t realize they wouldn’t be coming home that day. You never know when you wake up in the morning that you might die.’” ¶58: “On January 7, 2017, Defendant Randall Doe referenced mass shootings and terrorist events in the news, mentioning the January 6, 2017 Fort Lauderdale airport shooting and cautioning, again, ‘you never know when you are going to die.’” 9 People v. Kraeger, 160 F.Supp.2d 360 (N.D.N.Y. 2001), did hold that the statement, “You need to repent because you never know how long you have,” to be a threat under the particular circumstances there. Id. at 367, 375. Defendants suggest that those unique circumstances are not present here, and furthermore that the reasoning in Kraeger does not comport with the better-reasoned and controlling rule set forth in the later decided People v. ORN. See, e.g., ORN at 196 (“We are also troubled by the District Court’s willingness to characterize a broad range of protestor statements as ‘threats’ without giving them the full analysis required by the First Amendment.”). With respect, these Defendants suggest that the district court in Kraeger made the same mistake. 10 ¶60: “While entering the clinic one day, a Choices staff member heard one of the Defendants yell out her name and where she lived, causing her to fear violence to herself and her family. Defendant Anne Kaminsky then informed this staff member that her name was on a website devoted to anti-abortion activity, and that Kaminsky could remove her name from the website, provided that the staff member ceased working at Choices.”

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The remaining allegations are equally deficient in constituting threats of force. The

allegation in ¶6111 (filming) does not threaten imminent force to any person and in any event is

squarely within the protections of the First Amendment, as shown in these Defendants’ opening

memorandum. ECF 80 at 27-28. Plaintiff’s allegation that the mere act of filming “constitutes a

threat of force” (Pltf’s Opp. at 19-20) is a bare allegation unsupported by any citation of

authority. The Complaint does not even allege that video taken at Choices is actually posted on

any website (which would in any event be false, because it has not been). Paragraph 6212

(referring to escorts as “deathscorts” and taking notes) is likewise fatally deficient as containing

no threat of force whatsoever.13 And ¶6314 is obviously not a threat of force. Despite being

allegedly “chased” by Defendant Randall Doe, the patient retrieved something from her car and

11 ¶61: “Defendants Kenneth Griepp, Patricia Musco, Ronald George, Angela Braxton, and Scott Fitchett, Jr. use their smartphones and GoPro cameras to film patients, clinic escorts, and staff outside the clinic.” 12 ¶62: “Defendant Prisca Joseph routinely refers to the volunteer clinic escorts as “deathscorts” and takes copious notes of what is happening outside the clinic, chronicling who enters, when they enter, and what they look like. On February 18, 2017, an escort observed her record the license plate number of a clinic staff person.” Of course, even if true, Ms. Joseph’s referring to the escorts by such a term would be protected by the First Amendment. 13 Plaintiff cites People v. Cain, 418 F. Supp. 2d 457, 477 (S.D.N.Y. 2006), for the proposition that taking down someone’s license number can be reasonably interpreted as a threat of force. Pltf’s Opp. at 19. But the behavior in Cain was totally different from what is being alleged here. In Cain the defendant said, “stay out of [my] way. This is your last warning.” In that context he made “a show of noting the license plate of a car.” Nothing of the sort is alleged in the Complaint (see ¶ 61). The generalized statement there that certain Griepp Defendants use “GoPro cameras to film patients, clinic escorts, and staff outside the clinic” paints no context of imminent threat. As the Cain court said, “[w]ritten words or phrases take their character as threatening or harmless from the context in which they are used, measured by the common experience of the society in which they are published, [omitting citation], and the same must be true for non-verbal communication.” Id. Without such a context, the allegation is insufficient as a matter of law to indicate a threat of force. See People v. ORN, 273 F.3d 184, 195 (“We remain mindful, however, of the fact that an erroneous application of F.A.C.E. threatens to impinge legitimate First Amendment activity.”); see also id. at 196 (“We are also troubled by the District Court's willingness to characterize a broad range of protestor statements as ‘threats’ without giving them the full analysis required by the First Amendment.”). 14 ¶63: “On at least one occasion, Defendant Randall Doe chased a patient as she exited Choices and returned to her car parked more than a block away, hovering over her as she retrieved an item from her vehicle, and then following her back to the clinic.”

14

then walked back to the clinic. Her very actions prove that she was not fearful of immediate

harm. Thus, these allegations of “threats of force” must be dismissed as failing to state a claim.

3. Allegations of “physical obstruction.”

As already demonstrated in the Griepp Defendants’ Memorandum in Support of its

Motion to Dismiss (ECF 79-1 at IV. C.), the Complaint’s allegations of physical obstruction (¶¶

64-68) are either entirely false (the pictures of signs allegedly blocking access accompanying ¶

65 is simply false), or devoid of any specificity. No dates or times are alleged anywhere. If, as

alleged in ¶ 66, Griepp Defendants Brian George, Randall Doe, Ronald George, Prisca Joseph,

and Patricia Musco “regularly physically obstruct access to Choices by blocking the clinic

entrance door directly,” one would think the AG would be in a position to provide at least some

pictorial or particularized evidence after his two years of investigation. Remarkably, nothing has

been set forth save for the conclusory allegation. The allegation in ¶ 66 that these Defendants

“get[] so close to the door that patients and staff must maneuver around them,” does not allege

physical obstruction at all. Moreover, the allegations of “physical obstruction” omit any

allegation of intent. Without an allegation of actual physical obstruction or even an intent to

obstruct, the allegations must be dismissed as failing to state a claim. See People v. Cain, 418

F.Supp.2d at 474 (explaining FACE’s two separate intent elements and dismissing certain claims

for lack of meeting those requirements).

Plaintiff’s only response (Pltf’s Opp. at 21-23) is to repeat his allegations and to reference

(at ECF 68, II. B. 1. c.) cases (Cain, Kraeger, ORN, and Dinwiddie) that present facts quite

different than the case at bar. In those cases it was clear that the defendants were conducting

campaigns physically to shut down the abortion clinics they targeted.15 Not so here. What is

15 For example, in United States v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996), (cited by Plaintiff at 16-17), the context of the statement deemed an actionable threat included that the defendant (1) was “a well-

15

being complained of here is the Griepp Defendants’ sidewalk counseling efforts to speak to and

distribute literature to abortion-minded women.16 Not even one allegation is made that a specific

person was physically blocked or prevented for any length of time from entering the Choices

abortion clinic. Plaintiff’s statement -- that “[a]llegations that individuals encountered

interference and harassment while attempting to enter or leave a clinic is sufficient to meet this

[physical obstruction] element” -- is incorrect in light of the First Amendment context of this

case. As the Second Circuit stated in People v. ORN, 273 F. 3d at 195-196:

The fact that such protests make approaching health facilities unpleasant and even emotionally difficult does not automatically mean that such protest activities may be curtailed. It is worth reinforcing that we must tolerate even views that upset our most

known advocate of the view that it is justifiable to use lethal force against doctors who perform abortions,” (2) had physically attacked a clinic escort, (3) had physically obstructed patients, (4) repeated the threat over 50 times, in response to which the doctor had taken to wearing a bullet-proof vest, and (5) had previously threatened the clinic director, all of which was known to the abortionist. Id. at 925-26. Similarly, in People v. Kraeger, 160 F.Supp.2d 360 (N.D.N.Y. 2001), (1) all of the defendants had prior arrests for their protest activities at other clinics (id. at 364), (2) two of the defendants had been convicted of trespass and contempt of court (id.), (3) some engaged in direct and blatant physical obstruction not only on the sidewalk but even of an automobile (id. at 366), and (4) one was arrested, charged, and convicted on two different charges during the period complained of (id. at 369. And in People v. ORN, 273 F.3d 184 (2nd Cir. 2001), (1) large and ongoing demonstrations, involving thousands of protesters, had been occurring for many years, (2) an injunction had been issued years before, (3) a large-scale protest had been announced for an upcoming date, (4) shouted through bullhorns, and (5) on at least one occasion stood in front of a clinic employee’s car for so long that the employee finally gave up trying to exit. Id. at 191-92. None of these circumstances is present here. 16 Thus ¶ 54: “Defendants Angela Braxton and Prisca Joseph pin patients against the clinic’s outer wall or force them into parking meters or the street as they chase after them to provide anti-abortion literature.” (Emphasis added). ¶ 52: “On May 6, 2017, while trying to force anti-choice literature on a patient and her companion and repeatedly intoning “don’t kill your baby”, Sharon Doe followed a patient and her companion [] closely. . .”. (Emphasis added). ¶ 28: “Prisca Joseph . . . physically leaning into said vehicles so as to provide unwanted anti-choice literature and harass patients and their companions . . .”. (Emphasis added). ¶ 26: same as to defendant LaLande. ¶ 25: Defendants “often hand[] children anti-choice literature and instructing them to “give this to your Mommy to read;”. (Emphasis added). ¶ 22: “Brian George . . . chasing and crowding patients within fifteen feet of the premises as patients approach Choices in order to force anti-choice literature on them. . .”. (Emphasis added). See also ¶¶ 3, 16, 17, 18, 19, 20, 21, 79 (all complaining of distribution of “anti-choice” or “anti-abortion” literature).

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heartfelt and deeply held convictions. “Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” Wolin v. Port of N.Y. Auth., 392 F.2d 83, 91 n.10 (2d Cir.), cert denied, 393 U.S. 940 (1968) (quoting Terminello v. City of Chicago, 337 U.S. 1, 4 (1949).

Since First Amendment rights are involved here, Plaintiff is not entitled to assume that patients’

feelings of discomfort or their dislike for the message the Griepp Defendants communicate are

enough in and of themselves to satisfy the elements required to state a valid FACE violation.

The allegations here, since they nowhere allege actual and intentional physical obstruction, but

simply dislike of the Griepp Defendants’ message, do not state a claim under the FACE act.

4. Allegations of “following and harassing.”

Plaintiff asserts that “the facts alleged in connection with the force, threat of force, and

physical obstruction are inexorably bound with the act of following and harassing” under the

NYC Clinic Access Act. Pltf’s Opp. at 23-24. It follows that the pleading defects of the FACE

elements infect pleading of a violation of the NYC Clinic Access Act. Moreover, this allegation

perhaps more than any other highlights the nature of Plaintiff’s assault on the First Amendment.

That some of these Defendants “followed” clients while trying to communicate their message

may be true; but in order to prove “harassment” here it is necessary to examine the content of

Defendants’ speech; there is simply no other basis on which it may be inferred. Plaintiff seems to

concede as much in his Response in Opposition to Defendant Braxton’s motion to dismiss. See

ECF 84 at 27-28, which the AG has incorporated in its opposition here as well (arguing that

NYC Clinic Access Act is a reasonable time, place, and manner regulation on speech).

The AG relies upon dated case law the analysis of which has been superseded by more

recent Supreme Court cases such as McCullen v. Coakley, __U.S. __, 134 S.Ct. 2518, 2529

(2014). McCullen raises the bar significantly where, as here, the state seeks to impose restrictions

17

on quintessential speech and expressive activities on the public sidewalks and public ways,

which “occupy a ‘special position in terms of First Amendment protection’ because of their

historic role as sites for discussion and debate.” Id., 134 S.Ct. at 2529. As pointed out in these

Defendants’ original memorandum, the McCullen Court reestablished the extraordinary lengths

to which our law will go to protect even offensive and unwelcome speech in these traditional

public fora. Id. McCullen found the state statute at issue there unconstitutional because it was not

narrowly tailored to serve any legitimate state interest. Here, the NYC Clinic Access Act also

fails the narrowly tailoring test set forth in McCullen (not to mention the content-neutrality test

set forth in Reed v. Town of Gilbert) and flies squarely in the face of this bedrock of protection

afforded by the First Amendment.

The only recent case the AG cites is an unreported New York city criminal court case that

involved a form of stalking and repeatedly sending threatening text messages to an individual

with whom the defendant had been romantically involved. See ECF 84 at 28 (citing People v.

Perez, No. 2015NY063390, 2016 N.Y. Misc. LEXIS 1529, at *6 (N.Y. City Crim. Ct. Apr. 28,

2016)). That case, which carries no precedential value here and which addressed an entirely

different ordinance, did not involve pure speech in a traditional public forum, and relied instead

upon the now-discredited “right to be left alone.” Additionally, it involved repeated contacts;

here, Defendants only have a matter of seconds to attempt a single contact. Furthermore, the

court in Perez conceded that the court of appeals had recently struck down a similar statute

which made it a crime to “communicate with a person” telephonically with the intent to “harass,

annoy, threaten, or harm” as an overbroad regulation of speech. Id. (citing People v. Golb, 23

N.Y.3d 455 (Ct. App. 2014)) (emphasis added). The NYC Clinic Access Act is more akin to the

18

overbroad ordinance in Golb than the stalking ordinance in Perez because it purports to

criminalize pure speech. It is therefore unconstitutional.

5. Extrinsic evidence.

The Plaintiff attempts to cure his pleading defects by directing the Court to dated video

stills in which the Griepp Defendants appear, and which he has submitted in support of his

motion for preliminary injunction. See Pltf’s Opp. at 10-11. But this is also improper.

When deciding a motion to dismiss, the Court is entitled to consider the following: (1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents “integral” to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [a] defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

Eaves v. Designs for Finance, Inc., 785 F.Supp.2d 229, 244 (S.D.N.Y. 2011) (quoting Weiss v.

Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y. 2011) (citation omitted)), and citing

Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)). None of these exceptions

is applicable. Plaintiff has not incorporated these stills by referencing them in his Complaint, so

exception (1) is not applicable. Nor are these declarations matters of which judicial notice may

be taken, or public disclosure documents, so exceptions (4) and (5) are inapplicable as well.

Obviously these were not documents in possession of these Defendants, so exception (3) is not

available either. The only possible argument for allowing consideration of these declarations and

materials is exception (2), documents “integral” to the complaint and relied upon in it. But the

case law forecloses this option here. “If a document outside of the complaint is to form the basis

for dismissal, however, two requirements must be met in addition to the requirement that the

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document be ‘integral’ to the complaint: (1) ‘it must be clear on the record that no dispute

exists regarding the authenticity or accuracy of the document’; and (2) ‘[i]t must also be

clear that there exist no material disputed issues of fact regarding the relevance of the

document.’” Eaves, 785 F.Supp.2d 229, 244 (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d

Cir. 2006)) (emphasis added). The accuracy of the materials the AG seeks to rely upon here are

hotly disputed; accordingly, importation of them at this stage of the proceedings is improper.

Indeed, the Griepp Defendants believe the videos completely confirm their denial of having

engaged in any unlawful conduct. Therefore, the court may not consider the video stills as

overcoming the Complaint’s pleading deficiencies, and these Defendants move that they be

disregarded.

B. Prior Cases Uniformly included Specific Times, Dates, and Circumstances.

The Attorney General excuses the appalling lack of specificity in his Complaint

not only with claims of pattern and broad generalities, but also with sprinkled citations to case

law such as People v. Cain, 418 F.Supp.2d 457 (S.D.N.Y. 2006). E.g., Pltf’s Opp. at 13, 15, 16.

But Cain supports Defendants’ case, not Plaintiff’s. The court in Cain explicitly referred to the

high degree of specificity put forth by the plaintiff there: “The findings of fact in this Opinion

stem largely from detailed descriptions of specific incidents . . . .” Cain, 418 F.Supp.2d at 463

(emphasis added). Although there were only two named defendants, the court noted at least

seventeen (17) specific incidents of alleged misconduct over a period of less than two years, and

seven of these were within a four month span. See id. at 464-67. In addition, at least one of the

defendants was arrested for his actions and an order of protection entered against him. Id. at 467.

He also had a prior arrest, had done jail time, and had had two different federal courts enter

permanent injunctions against him. Id. at 461. In stark contrast, not one of these Defendants has

20

even been cited, let alone arrested17, and the number of specific allegations here pales in

comparison to those in Cain despite the fact that these Defendants have been going to Choices

for many years.18

In short, a fair and objective analysis of the Complaint compels the conclusion that, rather

than addressing bona fide, serious violations of law, the Complaint represents a vehicle for a

friend of the Choices clinic and the abortion industry to mount a full-fledged assault on the First

Amendment rights of pro-life sidewalk counselors who at all times have conducted themselves

fully in accordance with law. As such, the Complaint should be dismissed for the reasons given.

17 Plaintiff once again attempts to rely upon extrinsic evidence to show some police action taken against these Defendants. Pltf’s Opp. at 15 n.12. As demonstrated above, this evidence is inadmissible here. Moreover, the circumstances surrounding those actions are disputed, involving proactive efforts by the clinic staff and escorts rather than by the police, as will be shown at the appropriate time. 18 The same attention to specificity may be seen in the case of People v. Kraeger, 160 F.Supp. 2d 360 (N.D.N.Y. 2001), also cited by Plaintiff. And, as in Cain, there was at least one arrest in Kraeger, which resulted in two convictions. Id. at 369.

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CONCLUSION

The Griepp Defendants request that the Complaint against them be dismissed, and such

other and further relief to which they may be entitled.

Respectfully submitted this 11th day of September, 2017.

/s/Norman B. Arnoff Norman B. Arnoff

nbarnoff@aol.com 917-912-1165 212-751-0064 60 East 42nd Street, Suite 628 New York, NY 10165 /s/ Martin Cannon Martin Cannon Thomas More Society 19 S. La Salle Street, Suite 603 Chicago, IL 60603 312-782-1680 mcannonlaw@gmail.com One of the counsel for Defendants Kenneth Griepp, Ronald George, Patricia Musco, Ranville Thomas (aka “Randall Doe”), Osayinwense N. Okuonghae, Anne Kaminsky, Brian George, Sharon Richards (aka “Sharon Doe”), Deborah M. Ryan, and Prisca Joseph

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing REPLY IN SUPPORT OF MOTION TO

DISMISS BY GRIEPP DEFENDANTS was filed electronically on September 11, 2017.

Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties

indicated on the electronic filing receipt. This includes: Sandra Pullman, Esq., Nancy Trasande,

Esq., Lourdes Rosado, Esq. (Counsel for Plaintiffs); Jay R. Combs, Esq. (Counsel for

Defendants Angela Braxton and Jasmine LaLande); and Roger K. Gannam, Esq. and Horatio G.

Mihet, Esq. (Counsel for Defendant Scott Fitchett, Jr.). Parties may access this filing through

the Court’s system.

/s/Norman B. Arnoff Norman B. Arnoff

nbarnoff@aol.com 917-912-1165 212-751-0064 60 East 42nd Street, Suite 628 New York, NY 10165 /s/ Martin Cannon Martin Cannon Thomas More Society 19 S. La Salle Street, Suite 603 Chicago, IL 60603 312-782-1680 mcannonlaw@gmail.com One of the counsel for Defendants Kenneth Griepp, Ronald George, Patricia Musco, Ranville Thomas (aka “Randall Doe”), Osayinwense N. Okuonghae, Anne Kaminsky, Brian George, Sharon Richards (aka “Sharon Doe”), Deborah M. Ryan, and Prisca Joseph