10th Cir. Orders Trial for Anti-Abortion Letter Writer

(CN) - The case against an anti-abortion activist who sent a strongly worded letter to a doctor planning to offer abortions in Wichita, Kansas, should go to trial, the 10th Circuit ruled on Tuesday, reversing a federal judge's summary judgment in favor of the letter writer.

In January of 2011, defendant Angel Dillard sent a letter to Dr. Mila Means, who had been training to offer abortion services in Wichita. Means would have been the first doctor to perform abortions in the area since the 2009 murder of Dr. George Tiller, whom Dillard referenced in her letter.

"Maybe you don't realize the consequences of killing the innocent," Dillard wrote. "If Tiller could speak from hell, he would tell you what a soulless existence you are purposefully considering, all in the name of greed."

The letter went on to say that "thousands of people are already looking into your background, not just in Wichita, but from all over the U.S. They will know your habits and routines. They know where you shop, who your friends are, where you drive, where you live. You will be checking under your car everyday-because maybe today is the day someone places an explosive under it."

Dillard concluded, "I urge you to think very carefully about the choices you are making. There are three churches within one block of your practice, and many others who must take a stand. We will not let this abomination continue without doing everything we can to stop it. We pray you will either make the right choice and use your medical practice to heal instead of kill, or that God will bring judgment on you, the likes of which you cannot imagine."

In April 2011, the federal government filed a civil suit against Dillard for violating the Freedom of Access to Clinic Entrances Act (FACE), which prohibits using force, threats, or intimidation to interfere with those seeking or performing reproductive health services.

In 2013, a Kansas federal court summarily ruled in favor of Dillard, finding that "defendant's letter did not contain a true threat because (1) it did not suggest unconditional, imminent, and likely violence and (2) it predicted violence by third parties but did not suggest defendant would herself engage in violence against the doctor," according to the 10th Circuit opinion.

Tenth Circuit Judge Monroe McKay, writing for a three-judge panel, disagreed and found the matter should have gone to trial.

"A defendant cannot escape potential liability simply by using the passive voice or couching a threat in terms of 'someone' committing an act of violence, so long as a reasonable recipient could conclude, based on the language of the communication and the context in which it is delivered, that this was in fact a veiled threat of violence by the defendant or by someone acting under her direction or in conspiracy with her," McKay wrote.

He continued, "We are persuaded a jury could reasonably find defendant's letter to convey a true threat of violence by her or someone acting in association with her."

McKay further outlined the context surrounding the letter, including a news article in which Dillard talked about her friendship with and admiration of Scott Roeder, Tiller's murderer, although she added she would not resort to violence.

The judge also acknowledged that "the jury in this case might well agree with defendant that her letter conveys, at most, a prediction of violence by third parties unknown to and unaffiliated with defendant, and this question must therefore be left for the jury to decide."

McKay rejected Dillard's claims that the government was illegally casting her as "guilty by association" with Roeder as well.

"The government does not argue that defendant must be guilty because she associated with Mr. Roeder; rather, the government contends that reports of her association with Mr. Roeder are part of the context that would have an impact on a reasonable recipient's reaction to her letter," McKay wrote. "The district court therefore erred in granting summary judgment in favor of defendant on this ground."

Circuit Judge Bobby Baldock, however, felt his colleague's reversal went too far.

"The court devotes a good portion of its analysis to showing that a true threat can indeed be conditional, non-imminent, or impersonal," he wrote in his nine-page dissent. "And I would agree. But here we are dealing with a letter that is all of the above: conditional, non-imminent, and impersonal. The court does not acknowledge this complication, much less wrestle with it."

"In the end, Dillard's crude rhetoric and the general preference for juries make this a tricky case," Baldock continued. "[But] the court is on very shaky ground-in terms of precedent and factual context-when it sends this case to the jury. And shaky ground is not a desirable place to be, especially when a core First Amendment right is involved."

Dillard faces a fine of up to $15,000 if found guilty.

Neither side responded to a request for comment.

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