Heckler’s Veto: $1.5 Million Nuisance Verdict Against Abortion Clinic, Chiefly Based on Actions of Protesters and Arsonists
The case in McBrayer v. Governors Ridge Property Owners Ass’n, Inc., and our friend-of-the-court brief supporting reversing the judgment was filed by our invaluable pro bono local counsel Darren Summerville (many thanks to him!), on behalf of amici
- Profs. Thomas C. Arthur (Emory), Michael J. Broyde (Emory), Nicholas Johnson (Fordham), Thomas E. Kadri (Georgia), Hillel Y. Levin (Georgia), Dean Lyrissa Lidsky (Missouri), Clare Norins (Georgia), David F. Partlett (Emory), Jonathan Peters (Georgia), Michael Perry (Emory), Glenn Harlan Reynolds (Tennessee), Ani B. Satz (Emory), Julie Seaman (Emory), Eric Segall (Georgia State), Fred O. Smith (Emory), Alexander Volokh (Emory), Camilla E. Watson (Georgia), Sonja R. West (Georgia), Barbara Woodhouse (Emory), and me (UCLA), plus
- the Firearms Policy Coalition and
- the Georgia First Amendment Foundation.
A nice mix, if I do say so myself, especially given the argument we are making; thanks to all of them for joining, to UCLA law student Madison Way for her help with the brief, and, as always, to Scott & Cyan Banister, whose support makes our UCLA Amicus Brief Clinic possible.
First, from the Marietta Daily Journal (Ross Williams), describing the basis for the $1.5 million verdict:
Alpha OB/GYN … for years the target of sign-waving protesters, and was even the victim of arson in 2012. It closed in 2015, according to court records.
In 2013, the Governor’s Ridge Property Owners’ Association filed suit against the clinic and owner Dr. Daniel McBrayer, arguing the clinic was a nuisance and violated the association’s covenants.
In court filings, the office park association’s attorneys said the clinic “brought unwanted attention to the other owners, greatly embarrassing and distressing them, the protests of anti-abortion picketers, who, among other things displayed large placards of terminated fetuses.”
[There had also been an arson attack on the clinic, and t]he attorneys also said their clients feared for their safety if another arson or other attack were to be carried out. Another clinic McBrayer worked at in Sandy Springs was bombed in 1997 by Olympic bomber Eric Robert Rudolph….
There were some allegations of misconduct by clinic patients and the people accompanying them (e.g., that some of them “loitered, littered, urinated and defecated in the common areas”), but the bulk of the arguments focused on the harms caused by the protesters and by the potential arsonists or bombers.
You can see the party briefs here, here, and here; Here is the Summary of the Argument from our amicus brief (we focus on the nuisance claim rather than on the violation of the covenants, because the covenants claim is based on the nuisance claim, and the parties likewise focused on the nuisance issue):
Under the lower court’s reasoning, many controversial businesses and organizations—churches, synagogues, mosques, bookstores, gun stores, political party offices, and more—may face economic ruin and be forced to shut down because they are targeted by protesters or criminals (or are even just morally disapproved of by their neighbors, despite being completely legal). Opponents could picket or attack those entities until neighbors file a nuisance lawsuit, forcing the opponents’ targets to either pay massive damages or to abate the nuisance by closing up shop, which is the opponents’ goal.
This sort of heckler’s veto is inconsistent with Georgia law, which generally does not hold businesses liable for behavior of third parties that it cannot control, and which generally requires a showing that a nuisance was proximately caused by defendants rather than by the supervening acts of third parties. Indeed, the lower court’s decision creates incentives for people to commit crimes; and it undermines the legal and constitutional rights of law-abiding businesses and their clients. The decision should be reversed.
And here’s the Argument:
[I.] Dr. McBrayer should not be held liable for harms caused by his political enemies
[A.] Allowing liability against McBrayer would justify liability against a wide range of legal, constitutionally protected businesses
Many religious, political, social, and commercial organizations and people are targeted by opponents for repeated protests, and some are targeted for violence. These include:
- Synagogues, g., Gerber v. Herskovitz, No. 19-13726, 2020 WL 4816145 (E.D. Mich. Aug. 19, 2020)(weekly picketing, for over 15 years), appealed, No. 20-01870 (filed Sept. 9, 2020); Campbell Robertson, Christopher Mele & Sabrina Tavernise, 11 Killed in Synagogue Massacre; Suspect Charged With 29 Counts, N.Y. Times, Oct. 27, 2018 (mass shooting).
- Mosques, g., Tom Dart, Protesters Decry Islam Outside Phoenix Mosque, Guardian (UK), Oct. 10, 2015(“gathering of more than 120 demonstrators on either side of the issue, many carrying weapons”); Transcript, CNN, Anderson Cooper, 360 Degrees, Aug. 11, 2010 (five different protests outside mosques) (available on LEXIS); United States v. Hari, No. 18-cr-150-1 (DWF/HB), 2019 WL 7838275 (D. Minn. Oct. 21, 2019) (bombing).
- Churches, g., Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785, 787 (8th Cir. 2015)(“regular[]” picketing outside Catholic church); St. John’s Church in the Wilderness v. Scott, 296 P.3d 273, 275 (Colo. Ct. App. 2012) (picketing outside Episcopal church); Federal Sentencing for St. Landry Parish Church Arsonist Continued to Monday, KATC-3 (ABC), Oct. 30, 2020 (arson of historically black church); Church Arson Act, 18 U.S.C. § 247(a)(2) (federal statute enacted precisely because of a spate of arson of churches).
- Gun stores, g., Marwa Eltagouri, Riverdale Gun Shop to Be Target of Protest, Chi. Trib., Sept. 6, 2014(picketing organized by the Brady Center, a prominent pro-gun-control organization); Animal Rights Activists, Hunters Face Off in Hyannis, Boston Globe, Feb. 11, 2018 (“Hunters and gun rights activists traded jeers with animal rights advocates picketing outside a gun shop on Barnstable Road on Saturday to voice opposition to what the store is calling its ‘first annual Coyote Contest.'”).
- Bookstores, g., United States v. Bagaric, 706 F.2d 42, 66 (2d Cir. 1983)(bombing of a pro-Yugoslav bookstore, allegedly by a Croatian nationalist), abrogated by Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994); “Drag Queen Story Hour” Raises Concerns in New Port Richey—For Supporters and Protestors Alike, Tampa Bay Times, Aug. 26, 2019 (protests outside bookstore); Jaclyn Reiss, A Drag Queen Story Hour is Coming to Fall River’s Library — And Now a Group is Planning to Protest It, Boston Globe, May 30, 2019 (several protests nationwide, including at a Maine bookstore); Why People Flinch When White Nationalists Stage a Protest at a Bookstore, Peoria Journal Star, May 1, 2019; Spain: 7 Suspected Jihadists Jailed, Some Discussed Targeting Jewish Bookstore in Barcelona, AP, Apr. 10, 2015; Jason Boog, Conservative Activists Threaten To Burn Berkeley Bookstore, Publishers Weekly, Mar. 8, 2018 (threats against pro-Communist bookstore); Petra Mayer, ‘American Dirt’ Publisher Cancels Author Tour After Threats, NPR, Jan. 29, 2020 (“Flatiron Books, publisher of the controversial new novel American Dirt, has cancelled the remainder of author Jeanine Cummins’ book tour after what it called ‘specific threats to booksellers and the author.'”).
- Political organizations and political leaders’ homes, g., People Rally Outside Governor’s Mansion over Reopening of Some Businesses, WSB-TV, Apr. 24, 2020; Black Live[s] Mat
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