Victory for Life in New York

Jul 23, 2018

BROOKLYN, NY – U.S. District Judge Carol Bagley Amon has denied an injunction sought by the New York Attorney General (OAG) against 13 pro-life Christians who counsel women and preach the gospel on the public sidewalks outside New York’s largest abortion business. Liberty Counsel represents defendant Scott Fitchett, Jr., who was sued with the other defendants in June 2017 by former New York Attorney General Eric Schneiderman who wanted to shut down the Christian and pro-life speech of the defendants outside Choices Women’s Medical Center in Jamaica, NY. Fitchett is a pre-K teacher who has spent Saturdays peacefully sharing the gospel on public sidewalks throughout New York City, including outside Choices “to persuade women to change their minds about seeking an abortion by communicating the Gospel of Jesus Christ.”

Judge Amon’s 103-page order denying the OAG’s injunction meticulously took apart the OAG’s false claims of harassment and intimidation against Fitchett and the other defendants. Judge Amon found the OAG’s witnesses, including four Choices “escorts,” to lack credibility, and found the OAG’s video evidence to fall far short of the OAG’s burden of proof. At the outset of her substantial factual findings, Judge Amon explained, “The most problematic of the credibility issues discussed below is the tendency for the . . . OAG witness testimony to exaggerate the impropriety of the defendants’ conduct and to omit mitigating circumstances. In this regard, it is notable that, despite the availability of hundreds of hours of video evidence, the OAG has not cited a single video that corroborates the witness testimony . . . . Instead, the video evidence contradicts the escorts’ accounts of protestor conduct on specific occasions.” (Emphasis added).

Judge Amon’s order specifically noted the “biased and unreliable” testimony of the OAG’s main witnesses, as well as—

 —The exaggeration and selective destruction of evidence by clinic escort director Mary Lou Greenberg, along with her “evasiveness” and “non-credible statements” at the injunction hearing, “and the fact that Greenberg’s testimony at the preliminary injunction hearing frequently failed to accord with photographic, video, or other evidence of the same events.” (Liberty Counsel previously revealed that Greenberg is the spokesperson for the Revolutionary Communist Party, USA that publicly advocates the violent overthrow of the United States, and exposed her praise for mass-murderer Mao Zedong in a video on C-Span.)

—The “questionable candor” by escort leader Pearl Brady, who had advised her fellow witnesses (in private Facebook messages discovered by Liberty Counsel) how to sandbag their testimony, and had even created a fake Facebook account to spy on some defendants. “Of most concern,” Judge Amon wrote, “are the inconsistencies between her descriptions of protestor conduct and the conduct shown in the supporting videos and photographs.”

—Escort leader Theresa White’s “inability to recall events with accuracy, her admittedly faulty memory and eyesight and her sometimes exaggerated descriptions of protestor misconduct.”

—Security guard Troyd Asmus’s “inability to recall certain details with specificity and his admitted exaggeration of the impropriety of protestor conduct.” (Liberty Counsel had previously uncovered that Asmus informed AG Schneiderman’s office, before the lawsuit was filed, that Fitchett never blocked, followed, harassed or intimidated anyone outside of Choices, showing Schneiderman’s entire case against Fitchett was based on falsehood.)

Judge Amon’s order categorically rejected all of the OAG’s claims that Fitchett threatened or intimidated Choices patients or interfered with their access to the facility. To the contrary, Judge Amon found, “His sole activity was to preach and hold a sign [CHRIST DIED FOR SIN] while standing at the edge of the sidewalk,” and credited Fitchett’s testimony “that he preached the gospel outside an abortion clinic,” against “what he perceives to be outrageous sin.”

Even though the order denies only the OAG’s preliminary injunction request, Judge Amon sent a clear message to the OAG that attempting to move this case forward against Fitchett and the other defendants is a fool’s errand: “In effect, the trial has already been held . . . . [W]here the OAG has failed to establish a violation, the OAG is neither likely to succeed on the merits of that claim nor able to establish a sufficiently serious question going to the merits of that claim.”

Schneiderman filed the lawsuit in June 2017 based on the federal Freedom of Access to Clinic Entrances Act (FACE) and similar New York laws. Enacted by Congress to prevent actual violence and physical obstruction of abortion facility entrances, Schneiderman intended his FACE action to silence the pro-life and Christian messages he despised. Making his animus clear, he launched the lawsuit against Fitchett and the other defendants with a press conference outside Choices, where he touted his pro-abortion credentials while shockingly berating pro-life Christians who he said “run their mouths” with “unlawful, un-American rhetoric.” Flanked by the millionaire abortionist and Choices owner Merle Hoffman, Schneiderman smugly declared, “We are not a nation where you can choose your point of view,” and denigrated Christians’ efforts to counsel women and advocate for the life of the unborn as “horrifying” and “illegal.” In a sad twist of irony, Schneiderman would resign in disgrace less than a year later after serious allegations that he physically abused four women.

“Judge Amon’s order completely vindicates Scott Fitchett because he did nothing wrong,” said Horatio Mihet, Liberty Counsel’s Vice President of Legal Affairs and Chief Litigation Counsel. “Scott Fitchett’s preaching of the gospel on a public sidewalk is protected by our Constitution, even if it’s in front of an abortion clinic, and even though New York’s Attorney General despises it. The lawsuit against Fitchett was based on a lie and not even the bevy of Harvard-trained lawyers from the AG’s ‘Social Justice Division,’ a millionaire abortionist who has killed more than a million babies, a communist agitator who plans the violent overthrow of our government in her spare time, or the corrupt former Attorney General who publicly billed himself the Protector of Women everywhere, could silence Fitchett’s constitutionally protected preaching,” said Mihet.

Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.