People of the State of New York v. Griepp

18-2454-cv (L)
People of the State of New York v. Griepp
1
UNITED STATES COURT OF APPEALS 2
FOR THE SECOND CIRCUIT 3
____________________ 4
5
August Term, 2019 6
7
(Argued: September 26, 2019 Decided: March 10, 2021) 8
9
Docket Nos. 18-2454-cv, 18-2623-cv, 18-2627-cv, 18-2630-cv 10
11
12
____________________ 13
14
PEOPLE OF THE STATE OF NEW YORK by 15
LETITIA JAMES, Attorney General of the State of New York, 16
17
Plaintiff-Appellant—Cross-Appellee, 18
19
v. 20
21
KENNETH GRIEPP, RONALD GEORGE, PATRICIA MUSCO, 22
RANVILLE THOMAS, OSAYINWENSE OKUONGHAE, 23
ANNE KAMINSKY, BRIAN GEORGE, SHARON RICHARDS, 24
DEBORAH M. RYAN, ANGELA BRAXTON, 25
JASMINE LALANDE, PRISCA JOSEPH, SCOTT FITCHETT, JR., 26
27
Defendants-Appellees—Cross-Appellants.1 28
29
____________________ 30
31
1 The Clerk of Court is directed to amend the caption as above.

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Before: LIVINGSTON, Chief Judge, CALABRESI, and POOLER, Circuit Judges. 1
Appeal from the order of the United States District Court for the Eastern 2
District of New York (Carol Bagley Amon, J.) denying Appellant Attorney 3
General of the State of New York (“OAG”) a preliminary injunction against 4
Defendants Kenneth Griepp, Ronald George, Patricia Musco, Ranville Thomas, 5
Osayinwense Okuonghae, Anne Kaminsky, Brian George, Sharon Richards, 6
Deborah Ryan, Prisca Joseph, Angela Braxton, Jasmine LaLande, and Scott 7
Fitchett, Jr. (collectively “Defendants”) relating to their protest activities in 8
violation of the federal Freedom of Access to Clinic Entrances Act (“FACE”), 18 9
U.S.C. § 248(a)(1), (c)(3)(A); the New York Clinic Access Act (“NYSCAA”), N.Y. 10
Penal Law § 240.70(1)(a)-(b); and the New York City Clinic Access Act (“the City 11
Act”), N.Y.C. Admin. Code §§ 10-1003(a)(1)-(4), 10-1004. 12
Cross-appeal from the order of the United States District Court for the 13
Eastern District of New York (Carol Bagley Amon, J.) denying the OAG a 14
preliminary injunction. Defendants—Cross-Appellants challenge the district 15
court’s conclusion that FACE and its analogs are not facially unconstitutional 16
and argue that the City Act’s follow-and-harass and clinic-interference 17
provisions are void for vagueness. Defendants—Cross-Appellants further 18

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challenge the district court’s conclusions that the OAG has parens patriae 1
standing to sue under the City Act and that defendant B. George violated FACE, 2
NYSCAA, and the City Act by physically obstructing patients. 3
VACATED and REMANDED in part and AFFIRMED in part. Judge 4
Calabresi joins in Judge Pooler’s opinion for the Court and also concurs by a 5
separate opinion. Chief Judge Livingston concurs in part and dissents in part in a 6
separate opinion. 7
____________________ 8
ESTER MURDUKHAYEVA, Assistant Solicitor General 9
(Steven C. Wu, Deputy Solicitor General, on the brief), for 10
Barbara D. Underwood, Solicitor General of the State of 11
New York, for Letitia James, Attorney General of the 12
State of New York, New York, NY, for Plaintiff- 13
Appellant—Cross-Appellee. 14
15
MARTIN A. CANNON, Thomas More Society, 16
Crescent, IA, for Defendants-Appellees—Cross-Appellants 17
Kenneth Griepp, Ronald George, Patricia Musco, Ranville 18
Thomas, Osayinwense Okuonghae, Anne Kaminsky, Brian 19
George, Sharon Richards, Deborah M. Ryan, Prisca Joseph. 20
21
RICHARD THOMPSON (Kate Oliveri, on the brief), 22
Thomas More Law Center, Ann Arbor, MI, for 23
Defendants-Appellees—Cross-Appellants Angela Braxton, 24
Jasmine LaLande. 25
26

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Horatio G. Mihet and Roger K. Gannam, Liberty 1
Counsel, Orlando, FL, for Defendant-Appellee—Cross- 2
Appellant Scott Fitchett, Jr. 3
4
Richard Dearing, Aaron Bloom, Eva Jerome, Assistant 5
Corporation Counsel, for Zachary W. Carter, 6
Corporation Counsel of the City of New York, New 7
York, NY, amicus curiae in support of Plaintiffs- 8
Appellants—Cross-Appellees People of the State of New 9
York. 10
11
Erin Beth Harrist, Arthur Eisenberg, New York Civil 12
Liberties Union, New York, NY, amicus curiae in support 13
of Plaintiffs-Appellants—Cross-Appellees People of the State 14
of New York. 15
16
POOLER, Circuit Judge: 17
Courts face unique difficulties when conflicting constitutional rights are at 18
stake. The right to protest is a fundamental right central to the First Amendment. 19
The right to be free from harassment and threats from protestors is an equally 20
fundamental right. Properly protecting both sets of rights presents some of the 21
most challenging work courts are called upon to do. 22
Helpfully, decisions of the legislature sometimes guide us in conducting 23
this delicate balancing task. With respect to protests outside reproductive health 24
clinics, Congress, the State of New York, and New York City have enacted laws 25
that delineate the line between appropriate protest activities and those that 26

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infringe improperly on the right of those attempting to access the clinic. This case 1
requires us to define the scope of the federal Freedom of Access to Clinic 2
Entrances (“FACE”) Act and its state and local counterparts. 3
Every Saturday morning in Queens, New York, anti-abortion groups 4
have protested outside Choices Medical Center, a reproductive health care 5
facility offering a myriad of reproductive health services, including abortions. 6
The protestors contend that their efforts walk up to, but do not cross, the legal 7
boundary. These protestors employ tactics like “do[ing] the slow walk in front of 8
the clients so [other protestors] can talk to [those patients],” because it “gives 9
[them] a little more time to plead for the baby’s life,” App’x at 1860; “tag 10
teaming” patients so that, even after a patient has asked the protestor to leave her 11
alone, another protestor will approach the patient, App’x at 1750; or using signs 12
as a “barrier” by the clinic entrance on a city sidewalk, App’x at 1881. 13
After a yearlong investigation into the protestor activity outside Choices, 14
the New York Office of the Attorney General (“OAG”) brought suit and sought a 15
preliminary injunction against certain protestors, including Defendants Kenneth 16
Griepp, Ronald George, Patricia Musco, Ranville Thomas, Osayinwense 17
Okuonghae, Anne Kaminsky, Brian George, Sharon Richards, Deborah Ryan, 18

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Prisca Joseph, Angela Braxton, Jasmine LaLande, and Scott Fitchett, Jr. 1
(collectively “Defendants”) relating to their protest activities in violation of the 2
federal Freedom of Access to Clinic Entrances Act (“FACE”), 18 U.S.C. 3
§ 248(a)(1), (c)(3)(A); the New York Clinic Access Act (“NYSCAA”), N.Y. Penal 4
Law § 240.70(1)(a)-(b); and the New York City Clinic Access Act (“the City Act”), 5
N.Y.C. Admin. Code §§ 10-1003(a)(1)-(4), 10-1004. 6
In its denial of the preliminary injunction, which the OAG appeals before 7
us today, the district court concluded that Defendants’ conduct was too minor to 8
constitute violations of FACE and its state and local analogs. It characterized the 9
challenged protestor activity as merely “incidental contact,” causing only 10
“slight[]” deviations or delays, or otherwise being too negligible to interfere with 11
patients’ rights. New York by Underwood v. Griepp, No. 17-CV-3706, 2018 WL 12
3518527, at *33, *44 (E.D.N.Y. July 20, 2018). 13
We cannot completely agree with the district court’s conclusions. FACE is 14
by its own terms broad. Writing in restrictions to narrow its reach, in 15
contravention of its text and purpose, would effectively eviscerate the statute. 16
Because we determine that the district court made certain improper evidentiary 17
and credibility rulings, relied on clearly erroneous factual findings in assessing 18

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the OAG’s physical obstruction claims, erred in its interpretation of the FACE 1
statute and its state and local analogs, and abused its discretion in finding no 2
irreparable harm, we vacate and remand in part.2 We affirm as to the remainder. 3
Defendants also cross-appeal from the same order denying the preliminary 4
injunction. Defendants challenge the following conclusions of the district court: 5
(1) Defendant Brian George violated FACE, NYSCAA, and the City Act by 6
physically obstructing patients; (2) the statutes do not violate the First 7
Amendment; and (3) the OAG has parens patriae standing to sue under the City 8
Act. We affirm the district court’s conclusions on these issues. 9
BACKGROUND 10
I. Choices Medical Center 11
Choices Medical Center (“Choices”) is an ambulatory outpatient medical 12
center that provides extensive reproductive health services in Jamaica, Queens, 13
2 As we have noted before, “abuse of discretion is a nonpejorative term of art; it
implies no misconduct on the part of the district court. The term merely
describes circumstances in which a district court bases its ruling on an erroneous
view of the law or on a clearly erroneous assessment of the evidence, or renders a
decision that cannot be located within the range of permissible decisions.” United
States v. Hendricks, 921 F.3d 320, 328 n.37 (2d Cir. 2019) (internal citations,
brackets, and quotation marks omitted). In using the term “abuse of discretion”
in this opinion, we therefore mean no slight to the able district court in this case.

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New York. Choices provides medical services such as abortions, prenatal care, 1
colposcopy, and obstetrics and gynecological services, among others. The main 2
entrance is located on 147th Place between Jamaica and Archer Avenues, but 3
there is also an employee entrance on 148th Street between Jamaica and Archer 4
Avenues and a patient exit on Jamaica Avenue between 147th Place and 148th 5
Street. Most patients arrive by foot and enter through the main entrance. Other 6
patients arrive by cars, which drop them off on 147th Place next to the main 7
entrance. 8
Every Saturday morning since the clinic first opened in 2012, people have 9
protested outside the main entrance. While some protestors are independent 10
individuals, most are affiliated with organized groups such as Church at the 11
Rock or Grace Baptist Church.3 Protestors from Church at the Rock are typically 12
assigned roles including preaching, sidewalk counseling, handing out literature, 13
or holding large signs. 14
3 Defendants Kenneth Griepp, Ronald George, Patricia Musco, Ranville Thomas,
Osayinwense Okuonghae, Anne Kaminsky, Brian George, Sharon Richards,
Deborah Ryan, and Prisca Joseph are affiliated with the Church at the Rock.
Defendants Angela Braxton and Jasmine LaLande are protestors from Grace
Baptist Church. Defendant Scott Fitchett, Jr. is an independent protestor.

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As a response to the protest activity, Choices started a program by which 1
volunteer “escorts” greet and walk patients down the sidewalk to the main 2
entrance when protestors are present. These escorts arrive on Saturday mornings 3
and are present from the clinic’s opening at 7:00 am until the protestors’ 4
departure at approximately 10:00 am. To assist patients walking toward the 5
entrance and past the protestors, the escorts at times use their bodies to shield 6
the protestors, either by standing at the sides of patients or by walking in front of 7
or behind patients. Escorts also sometimes hold out their arms to maintain 8
distance between patients and protestors or stand in front of protestors’ signs to 9
block their visibility. On an average Saturday morning, there are two to three 10
dozen protestors and escorts. 11
II. The Attorney General’s Investigation 12
In June 2016, the OAG began a year-long investigation into the protest 13
activity outside Choices. As part of its investigation, it installed a high-mounted 14
surveillance camera to capture the 147th Place entrance, and it also used 15
undercover investigators with hidden cameras to pose as patients and their 16

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companions. Two escort leaders,4 Pearl Brady and Theresa White, aided the 1
investigation by wearing hidden cameras on a few occasions. 2
III. Procedural History 3
A. Preliminary Injunction Hearing 4
On June 20, 2017, the OAG, on behalf of the State of New York as parens 5
patriae, sued thirteen protestors for purported violations of FACE, 18 U.S.C. 6
§ 248(a)(1), (c)(3)(A); the NYSCAA, N.Y. Penal Law § 240.70(1)(a)-(b); and the 7
City Act, N.Y.C. Admin. Code §§ 10-1003(a)(1)-(4), 10-1004. In broad strokes, the 8
OAG alleged that Defendants violated these laws by crowding patients and 9
escorts with their bodies and signs, leaning into cars to provide literature or 10
counseling, making threatening statements, and attempting to engage patients 11
and escorts despite clear rebuffs. The OAG also filed a motion for a preliminary 12
injunction the same day it filed its complaint. Shortly thereafter, Defendants filed 13
motions to dismiss and opposed the motion for a preliminary injunction. 14
4 The escort program at Choices included volunteer escorts, who receive no
compensation, and escort leaders, who receive reimbursement from Choices for
travel to and from the clinic. Escort leaders are responsible for the volunteers.

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The parties agreed to expedite discovery and proceed to a preliminary 1
injunction hearing that, though trial-like, would not fully resolve the case. The 2
hearing spanned fourteen days. The district court held oral argument on the 3
motion approximately two and one-half months later. At the hearing, the parties 4
introduced three types of evidence: documentary evidence, video and 5
photographic evidence, and oral testimony from seven plaintiff’s witnesses and 6
ten defendants’ witnesses. 7
The documentary evidence consisted of two types of records kept by the 8
clinic: Clinic Escort Recaps (“Recaps”) and Protestor Experience Questionnaires 9
(“PEQs”). The Recaps provide an overview of the day’s events and any 10
noteworthy incidents. Various escorts or escort leaders draft the Recaps, but the 11
author of a given Recap is only sometimes apparent from the face of the 12
document. The PEQs are filled out by patients after entering the clinic and are 13
meant to collect information from the patients’ perspectives as to whether they 14
encountered protestors, and if so, whether the protestors touched them or tried 15
to prevent them from accessing the clinic’s entrance. The PEQs included both 16
yes/no questions and open-ended ones. 17

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The defense’s witnesses were primarily Defendants themselves, and the 1
OAG’s witnesses were escorts or other Choices employees. Pearl Brady, Margot 2
Garnick, and Theresa White were current or former escort leaders at Choices. 3
Mary Lou Greenberg was an independent contractor for Choices who worked on 4
community outreach and directed the escort program. Troyd Asmus was a 5
security guard at Choices from January 2013 to August 2016; in that role, he 6
monitored video surveillance footage in real time and patrolled the surrounding 7
area. Esther Priegue and Angelica Din were clinic staffers. 8
B. The District Court’s Decision 9
On July 20, 2018, the district court denied the OAG’s motion for a 10
preliminary injunction. 11
In its order, the district court assigned various degrees of weight to the 12
evidence introduced at the hearing. It accorded significant weight to the video 13
and photographic evidence. It found the defense’s witnesses and plaintiff’s 14
witnesses Priegue and Din credible, but it found plaintiff’s witnesses Brady, 15
Greenberg, Garnick, White, and Asmus not entirely credible based on their 16
demeanor while testifying, among other reasons. Escort Brady was considered 17
not credible because advice she gave to her fellow escorts on how to testify 18

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demonstrated questionable candor and because the district court identified 1
inconsistencies between her descriptions of protestor conduct during testimony 2
and the depictions of that conduct in videos or photographs. Escort program 3
director Greenberg was not entirely reliable because of her inability to recall 4
certain details, her tendency to exaggerate protestor misconduct and omit 5
mitigating details, and inconsistencies between her testimony and the video or 6
photographic evidence. Escort Garnick was also not considered entirely credible 7
because of her tendency to exaggerate protestor misconduct and inconsistencies 8
between her testimony and the other evidence. Escort White was found to be not 9
entirely credible because of her inability to recall events with accuracy, her faulty 10
memory and eyesight, and her exaggerations of protestor misconduct. Finally, 11
Choices security guard Asmus was unable to recall certain details with 12
specificity and admittedly exaggerated the impropriety of protestor conduct, so 13
he was deemed not fully reliable. 14
Regarding the documentary evidence, the district court gave no weight to 15
the Recaps and PEQs. It furnished the following reasons for doing so. First, the 16
documents were hearsay, and because of the procedural posture of the case, the 17
district court believed there was no need to grant any weight to hearsay. Second, 18

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the district court claimed that the Recaps exaggerated protestor misconduct. 1
Finally, the district court did not consider the PEQs because their representative 2
value was impossible to ascertain in light of the fact that escort program director 3
Greenberg had destroyed a number of PEQs without a system guiding her 4
retention and destruction decisions. 5
Based on the remaining credible evidence, the district court held that the 6
OAG failed to establish a likelihood of success on the merits for all but three of 7
its FACE, NYSCAA, and City Act claims. For each claimed violation, the district 8
court reviewed the video and photographic exhibits the OAG cited and provided 9
its rationale as to why each exhibit was insufficient to demonstrate a violation. 10
As a summary of its overarching conclusions, the district court said that the 11
exhibits did not establish the requisite intent and at most showed only de 12
minimis delays caused by the protestors.5 13
The sole challenged act that was ultimately held to be a violation was 14
defendant B. George’s “slow walk,” a tactic B. George used to delay patients and 15
their companions to provide more time for anti-abortion counseling. Griepp, 2018 16
5 We discuss the district court’s specific analysis and rationale for each exhibit in
our discussion of the claims, infra.

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WL 3518527, at *42. The district court also assumed, but did not decide, that 1
defendants Kaminsky and Musco violated the City Act when, on one occasion 2
each, they misled patients into believing the clinic was closed when it was in fact 3
open. Nonetheless, the district court denied the injunction because there was no 4
showing that irreparable harm was “actual and imminent” or that there was “a 5
reasonable likelihood that the wrong will be repeated.” Id. at *48 (internal 6
quotation marks omitted); see also id. at *42. It relied on B. George’s affidavit, 7
which stated that he had only engaged in the slow walk on a few occasions 8
before and “will not engage in that behavior again.” Griepp, 2018 WL 3518527, at 9
*42 (quoting B. George’s affidavit). As for Kaminsky and Musco, the court relied 10
on the fact that each had misled patients only once and had been warned against 11
doing so by the court. 12
In the same July 20, 2018 order, the district court rejected the claims 13
contained in Defendants’ motions to dismiss. Namely, it held that the statutes 14
did not violate the First Amendment and that the OAG had parens patriae 15
standing to sue under the City Act. It did not decide Defendants’ vagueness 16
challenge to the City Act’s follow-and-harass provision. 17
Both parties timely appealed. 18

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DISCUSSION 1
The issues presented to us by the appeal are: (1) whether the district court 2
erred in finding not reliable all the OAG’s documentary evidence and the bulk of 3
its testimonial evidence; (2) whether the OAG demonstrated a likelihood of 4
success on the merits of its FACE, NYSCAA, and City Act claims; and (3) 5
whether the OAG demonstrated irreparable harm. 6
The issues presented by the cross-appeal are: (1) whether FACE, NYSCAA, 7
and the City Act are facially constitutional; (2) whether the OAG has parens 8
patriae standing to sue under the City Act; and (3) whether defendant B. George 9
impermissibly engaged in physical obstruction by using a slow walk to delay 10
patients accessing the facility. 11
I. Evidentiary Rulings 12
We review a lower court’s credibility determinations for clear error. United 13
States v. Monzon, 359 F.3d 110, 119 (2d Cir. 2004). Although this standard is 14
deferential, we have reversed credibility determinations in some instances, such 15
as when the credibility assessment cannot be reconciled with other evidence, 16
when the district court incorrectly assessed the probative value of pieces of 17
evidence, when it relied on speculation, or when the determinations were 18

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“founded on factual inferences that the evidence did not permit.” Doe v. Menefee, 1
391 F.3d 147, 164 (2d Cir. 2004). 2
The OAG challenges the district court’s failure to give any weight to the 3
Recaps and PEQs along with its adverse credibility determinations regarding 4
five of its witnesses. We address each in turn. 5
A. Documentary Evidence 6
The district court did not assign any weight to the documentary 7
evidence—the Recaps and the PEQs—for three reasons: (1) the evidence was 8
hearsay, and because the parties had conducted discovery and presented live 9
testimony, there was no need to consider hearsay; (2) the Recaps, according to 10
the district court, tended to exaggerate the impropriety of protestor conduct; and 11
(3) because escort program director Greenberg destroyed a number of the PEQs 12
without having a system guiding her process, the PEQs’ representative value 13
was not ascertainable. We conclude that none of these is a valid basis upon 14
which to categorically reject the evidence. Therefore, failing to consider the 15
Recaps and PEQs was clear error. 16
In reaching this conclusion, we emphasize that the district court’s 17
categorical exclusion of this admissible evidence is the error. The dissent takes 18

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issue with what it perceives to be an imposition of our credibility determination 1
in the place of the district court’s, interpreting our decision as requiring the 2
district court to accept the Recaps and PEQs as entirely credible.6 We do no such 3
thing. We instead rely on applicable precedent instructing us that categorical 4
exclusion of this evidence was error. 5
1. Hearsay 6
As the district court correctly noted, hearsay evidence is admissible in a 7
preliminary injunction hearing. Mullins v. City of New York, 626 F.3d 47, 52 (2d 8
Cir. 2010). But while the district court properly admitted the Recaps and PEQs, it 9
erred in concluding that the Recaps and PEQs categorically “deserve[d] no 10
weight” because, having completed discovery and taken live testimony from 11
seventeen witnesses, “the urgency usually supporting the use of hearsay 12
testimony in this setting” was missing. Griepp, 2018 WL 3518527, at *5. 13
In Mullins, we explained that rejecting hearsay evidence at the preliminary 14
injunction stage “would be at odds with the summary nature of the remedy and 15
6 As the partial dissent notes, there are many points on which the entire panel
agrees. I refer to this partial dissent and partial concurrence as “the dissent” for
ease of reading.

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would undermine the ability of courts to provide timely provisional relief.” 626 1
F.3d at 52. Excluding documents exclusively because they are hearsay in a 2
preliminary injunction hearing is thus at odds with our precedent. This is true 3
regardless of whether testimony has been taken or discovery completed. Indeed, 4
in Mullins itself, discovery had concluded and depositions had been taken. Id. at 5
50-51. The district court here was permitted, under Mullins, to admit hearsay 6
despite the somewhat unusual procedural posture at hand. 7
Citing to Mullins, see Griepp, 2018 WL 3518527, at *5, the district court 8
correctly admitted the Recaps and PEQs, but it erred in categorically giving them 9
no weight. We recognize that a trier of fact has considerable discretion in 10
weighing the evidence before it. But the district court’s reason for ignoring the 11
documentary evidence here—that this evidence was both unnecessary and 12
inherently unreliable—functionally contravenes the principle we articulated in 13
Mullins, that “[t]he admissibility of hearsay . . . goes to weight, not preclusion, at 14
the preliminary injunction stage.” 626 F.3d at 52. Categorically giving no weight 15
to the Recaps and PEQs on this basis was therefore erroneous. See Bradford Tr. Co. 16
of Bos. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 805 F.2d 49, 55 (2d Cir. 1986) 17
(explaining that the district court’s decision to ignore evidence properly admitted 18

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under the public records exception because it was hearsay “is inconsistent with 1
the notion of having exceptions to the hearsay rule[;] [c]onsequently, it was error 2
for the trial court after admitting the FBI reports to accord them no weight”).7 3
Thus, the district court’s categorical exclusion of the documentary 4
evidence cannot be supported by the hearsay nature of the evidence. We now 5
turn to the district court’s additional justifications. 6
2. Escort Recaps 7
Notwithstanding the deference we give to a district court’s credibility 8
determinations, we conclude that the district court clearly erred in giving no 9
weight to the Recaps as a category. The district court chose not to give weight to 10
these documents because “they tend to exaggerate the impropriety of protestor 11
conduct and generally fail to provide . . . context.” Griepp, 2018 WL 3518527, at *5. 12
Yet the court only referenced one Recap with an apparent inconsistency to 13
support this sweeping characterization. 14
7 The dissent argues that the facts and circumstances of a given case should
dictate a district court’s approach to assigning weight to hearsay evidence. We
do not disagree with that principle. But, as we make clear below, it was the
district court’s blanket approach to discrediting the Recaps and PEQs—largely
because they constituted hearsay—that did not account for the facts and
circumstances of the present case.

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Even if the district court had grounds to assign little evidentiary weight to 1
that particular Recap on credibility grounds, it was inappropriate to dismiss 2
every Recap based on exaggeration in one. Each Recap described different 3
incidents from different shifts, based on the recollections of distinct groups of 4
volunteer escorts. Therefore, even if a few authors exaggerated, the exaggeration 5
in one or two Recaps may not necessarily appear in others. The district court’s 6
categorical exclusion of all Recaps based on one of them assumes that all these 7
documents share the identified infirmities—but this is a factual inference the 8
evidence does not permit. 9
Nor is there valid reason to believe that all escorts tend to exaggerate. The 10
district court suggested that the escorts were biased because of their views. 11
Defendants no less than escorts have firm convictions about abortion—but 12
Defendants were nevertheless considered credible. This alone, then, cannot 13
support a finding of bias. Without more to corroborate such a finding as to all 14
escorts who contributed to the Recaps, the categorical exclusion of these 15
documents lacks the necessary support. 16
Defendants point to an additional Recap to suggest the Recaps are 17
unreliable. The Recap notes that defendant Musco “used both hands to push 18

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escorts who were blocking her access to a patient near the entrance.” App’x at 1
2318. Defendants argue that, during the hearing, escort Garnick admitted the 2
Recap was inaccurate after viewing a video clip. That is not so. Garnick testified 3
that the shoving incident “isn’t [in the clip]. However, prior to that was what I 4
believe I testified to.” App’x at 1426. We fail to see how this is an inconsistency. 5
Even if there were an additional incorrect Recap, two unreliable 6
documents still would not justify categorical exclusion. Given the variation in 7
authorship, there is simply no logical basis to suggest all Recaps are similarly 8
defective. As a sister circuit has noted, because of the substantial risk that they 9
are arbitrary and overbroad, such blanket evidentiary rulings are strongly 10
disfavored. See Cerabio LLC v. Wright Med. Tech., Inc., 410 F.3d 981, 994 (7th Cir. 11
2005). Rather, the district court should have considered the evidence 12
individually. Id. By instead categorically rejecting all Recaps based on its 13
concerns about one of those documents, the district court abused its discretion. 14
3. Protestor Experience Questionnaires 15
Giving no weight to the PEQs because of concerns over the PEQs’ 16
representative value was also clear error. The district court concluded that the 17
“representative value” of the PEQs was “impossible to ascertain” because “only 18

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a sample” was presented to the court and because escort program director 1
Greenberg destroyed many of them. Griepp, 2018 WL 3518527, at *6.8 The PEQs’ 2
representative value is immaterial. The OAG sought to use the PEQs as 3
additional evidence of specific instances of protestor misconduct. The OAG did 4
not offer the PEQs for their representative value, but instead as further evidence 5
of specific instances of protestor misconduct. Accordingly, the failure to consider 6
the PEQs on this basis constitutes clear error. 7
4. Harmless Error 8
Having concluded that the district court’s evidentiary decisions were 9
erroneous, we turn to the question of whether categorically excluding these 10
documents was harmless.9 If so, we cannot vacate the judgment on these 11
grounds. See Fed. R. Civ. P. 61. An error is harmless if there is no “likelihood that 12
the error affected the outcome of the case.” Kogut v. County of Nassau, 789 F.3d 36, 13
47 (2d Cir. 2015) (citation and internal quotation marks omitted). However, this 14
8 Greenberg explained that she did not retain PEQs where patients did not
include a name because they did not want to be contacted about the incident or
where the PEQ indicated that no incident had occurred.
9 At our request, the parties submitted additional briefing on whether the district
court’s decision to assign no evidentiary weight to the PEQs and Recaps
constituted harmless error.

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does not mean that the evidence would necessarily ensure a different outcome. 1
“In evaluating the effect of an error on a particular judgment, we are mindful 2
that an appellate court deals only with probabilities, rather than certainties.” 3
Hawkins v. LeFevre, 758 F.2d 866, 877 (2d Cir. 1985); see also Kotteakos v. United 4
States, 328 U.S. 750, 765 (1946) (“The inquiry cannot be merely whether there was 5
enough to support the result, apart from the phase affected by the error. It is 6
rather, even so, whether the error itself had substantial influence. If so, or if one 7
is left in grave doubt, the [result] cannot stand.”). 8
We do not believe the errors in this case are harmless. Rather, our review 9
suggests that consideration of the Recaps likely would alter the outcome of the 10
proceedings below. On the OAG’s likelihood of success on the merits, the Recaps 11
provide additional evidence of violations. For instance, one Recap indicates that 12
defendant Richards stepped on and broke a patient’s flip-flop as the patient 13
approached the Clinic, such that the patient was left barefoot. See App’x at 2321 14
(Ex. 238-52). This could, in our view, support a physical obstruction claim. In 15
addition, the Recaps could have affected the outcome of the OAG’s force claims. 16
While the OAG attempted to demonstrate use of force through Recaps, the 17
district court did not consider these and considered only one incident for which 18

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there was video surveillance. But the Recaps recount other incidents of force that 1
could constitute violations. See, e.g., App’x at 2254 (Ex. 210). Had the district 2
court considered this evidence, the OAG might have succeeded in showing that 3
Defendants wrongfully used force. Furthermore, the Recaps also contain 4
evidence relevant to the OAG’s follow-and-harass claims. See, e.g., App’x at 2252 5
(Ex. 206), 2255 (Ex. 211). 6
The Recaps likely also would have affected the district court’s conclusion 7
that there was no irreparable harm. The district court found no likelihood that 8
defendant B. George would engage in his slow walk delay tactic based on his 9
affidavit, which stated that he had only done so “[o]n a handful of occasions in 10
early 2017.” App’x at 2187. Yet a Recap from June 2017 notes that B. George had 11
engaged in his “slow-walk block” and blocked patients several times that day. 12
App’x at 2324 (Ex. 238-56). This Recap thus calls into question the reliability of 13
the central evidence supporting the district court’s conclusion on irreparable 14
harm. 15
Defendants respond that there was no prejudice in failing to give the 16
Recaps any weight because the OAG was able to elicit testimony of the events 17
contained in the Recaps. We cannot agree. 18

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Even if the evidence was duplicative in content, the difference lies in the 1
credibility of each source. While the witnesses were considered not entirely 2
credible, as discussed above, we see no reason to categorically conclude that the 3
Recaps were similarly unreliable. As such, the district court’s decision to give no 4
weight to the Recaps was prejudicial in that it prevented the OAG from being 5
able to show credible evidentiary support for those alleged violations that were 6
not captured in the photographic or video evidence. We therefore conclude that, 7
to the extent the Recaps contain evidence relevant to finding violations of the 8
statutes at issue here, “preclusion of the evidence deprived [the OAG] of a full 9
hearing on the issue[s] . . . and was, therefore, not harmless error.” Glass v. Phila. 10
Elec. Co., 34 F.3d 188, 195 (3d Cir. 1994). 11
We reach a different conclusion with respect to the PEQs. The PEQs 12
contain significantly less information than the Recaps. Most importantly, the 13
PEQs do not identify any defendant by name. Accordingly, they could not be 14
used for the purpose of demonstrating additional violations. The OAG argues 15
that the PEQs are relevant because they show victims’ reactions to protestor 16
conduct, and that they thus “strongly undermine the district court’s conclusion 17
that the Attorney General’s witnesses exaggerated defendants’ misconduct.” 18

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27
Appellant’s Supp. Br. at 10. But as we discuss more fully below, the district 1
court’s credibility determinations were based on comparisons between witness 2
testimony and video evidence. The PEQs do not speak to these instances.10 For 3
these reasons, we conclude that the district court’s failure to consider the PEQs, 4
unlike its failure to consider the Recaps, was harmless error. 5
B. Plaintiff’s Witnesses 6
1. Pearl Brady 7
As to the adverse credibility determinations of plaintiff’s witnesses, we do 8
not believe that the district court clearly erred in finding these witnesses not 9
completely credible. We begin our discussion with escort Pearl Brady. The 10
district court provided two reasons for why it questioned Brady’s credibility: (1) 11
Brady’s “questionable candor as reflected by her advice to colleagues as to how 12
to testify,” and (2) “inconsistencies between her descriptions of protestor conduct 13
and the conduct shown in the supporting videos and photographs.” Griepp, 2018 14
10 Any attempt to generalize from the PEQs must fail because, as the district court
concluded, the representative value of the PEQs is not apparent from the record,
a conclusion the OAG does not challenge.

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28
WL 3518527, at *6. We agree with the district court’s reliance on the second, but 1
not the first, rationale. 2
We do not believe the advice escort Brady gave to her colleagues 3
demonstrates “questionable candor.” Id. In a group chat with other escorts, 4
Brady says while discussing upcoming depositions, “Just remember: yes, no, I 5
don’t know, I don’t remember, and I don’t understand the question. Short 6
answers. Don’t elaborate. This is for them to get more information, and it’s our 7
job to give them as little help as possible.” App’x at 3376. This is fairly standard 8
advice. Indeed, attorneys often tell their clients just what Brady tells her 9
colleagues in the chat: Say only what is necessary to answer the question and no 10
more. See Restatement (Third) of the Law Governing Lawyers § 116 (Am. Law 11
Inst. 2000). Nowhere in the chat does Brady encourage her fellow escorts to make 12
misrepresentations or otherwise act dishonestly. Such routine advice does not 13
support questioning Brady’s sincerity. 14
Nonetheless, we affirm the district court’s credibility determination based 15
on the inconsistencies it identified between Exhibit 31 and escort Brady’s 16
testimony. With regard to Exhibit 31, Brady testified that defendant R. George 17
“picked [his sign] up and when the escorts were trying to walk toward an 18

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arriving patient he put the sign down to block their access, which he did twice. 1
And then he stopped in the middle of the sidewalk and the patients had to go 2
around—the patient and the companion had to go around him in order to get 3
into the clinic.” App’x at 447. According to the district court’s interpretation of 4
the video, however, the escorts “were not ‘trying to walk toward an arriving 5
patient’ at all; they were only trying to step in front of R. George’s sign to block it 6
from sight.” Griepp, 2018 WL 3518527, at *11 (record citation omitted) (quoting 7
App’x at 447). 8
It is well established in our Circuit that inconsistencies between a witness’s 9
testimony and other evidence in the record can support a district court’s adverse 10
credibility determination. See Doe v. Menefee, 391 F.3d 147, 164 (2d Cir. 2004). This 11
is true even when, as here, the witness’s account was equally plausible. See id. 12
It would be another matter if the district court’s interpretation of the video 13
evidence were clearly erroneous. But given the deferential standard of review 14
and other evidence in the record supporting the district court’s interpretation, see 15
Ex. K-14 (depicting escort Brady moving in a manner like the escorts in Exhibit 16
31 while attempting to block a protestor’s sign), we cannot say that the district 17
court clearly erred in interpreting Exhibit 31. See also Anderson v. City of Bessemer 18

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City, 470 U.S. 564, 574 (1985) (noting that a district court’s decision to credit one 1
of two equally plausible views of the evidence is not clear error). 2
Therefore, while escort Brady’s advice to her fellow escorts on testifying 3
cannot support the district court’s adverse credibility determination of Brady, the 4
inconsistency identified between Exhibit 31 and Brady’s testimony can. For this 5
reason, we affirm the district court’s finding that Brady was not entirely credible. 6
2. Mary Lou Greenberg, Margot Garnick, Theresa White, and 7
Troyd Asmus 8
We further decline to disturb the district court’s credibility findings as to 9
plaintiff’s witnesses Greenberg, Garnick, White, and Asmus. The record 10
sufficiently supports the district court’s findings. The district court found escort 11
program director Greenberg not entirely credible based on Greenberg’s own 12
acknowledgement of an inconsistency between her deposition and testimony at 13
the hearing. The district court did not credit the bulk of escort Garnick’s 14
testimony because of inconsistencies between Exhibit 41, which shows defendant 15
Thomas moving his sign to be parallel to the clinic entrance such that it did not 16
crowd patients, and Garnick’s testimony that Thomas made it difficult for a 17
patient to get to the entrance. With regard to escort White, the district court 18

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supported its adverse credibility determination with testimony establishing 1
White’s memory and eyesight issues. Finally, the Choices security guard Troyd 2
Asmus was not considered credible because, besides his inability to recall certain 3
facts, Asmus admitted that some of his characterizations were overstated, such as 4
his use of the term “shoving paperwork” to refer to reaching out and wanting 5
patients to take the paperwork. Griepp, 2018 WL 3518527, at *8 (quoting 6
testimony). Because there is evidence in the record supporting the credibility 7
determinations as to plaintiff’s witnesses Greenberg, Garnick, White, and Asmus, 8
these determinations are not clearly erroneous. 9
C. Conclusion on the OAG’s Evidentiary Challenges 10
On the evidentiary issues before us, we conclude that it was clear error to 11
give the documentary evidence no weight. This error was harmless as it relates to 12
the PEQs, but not the Recaps. We vacate and remand in part as to the Recaps, but 13
we affirm the district court’s credibility determinations as to the plaintiff’s 14
witnesses. 15
II. Denial of OAG’s Motion for a Preliminary Injunction 16
A preliminary injunction may be granted when the party seeking the 17
injunction can show: (1) a likelihood of success on the merits; (2) irreparable 18

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harm; and (3) that a preliminary injunction is in the public interest. N. Am. Soccer 1
League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018). “This Court 2
reviews a district court’s legal rulings de novo and its ultimate denial of a 3
preliminary injunction for abuse of discretion. A district court abuses its 4
discretion when it rests its decision on a clearly erroneous finding of fact or 5
makes an error of law.” Id. at 36 (internal quotation marks and citations omitted). 6
A factual finding is clearly erroneous when, “although there is evidence to 7
support it, the reviewing court on the entire evidence is left with the definite and 8
firm conviction that a mistake has been committed.” New York ex rel. Spitzer v. 9
Operation Rescue Nat’l, 273 F.3d 184, 193 (2d Cir. 2001) (quoting Bose Corp. v. 10
Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)). 11
The OAG appeals the district court’s conclusions that it failed to establish 12
(1) a likelihood of success on the merits for all but three of the alleged FACE, 13
NYSCAA, and City Act violations; and (2) irreparable injury for the three 14
remaining violations. 15
A. Likelihood of Success on the Merits 16
FACE provides for civil and criminal penalties for any individual who, in 17
relevant part, “by force or threat of force or by physical obstruction, intentionally 18

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33
injures, intimidates or interferes with or attempts to injure, intimidate or interfere 1
with any person because that person is or has been, or in order to intimidate such 2
person or any other person or any class of persons from, obtaining or providing 3
reproductive health services.” 18 U.S.C. § 248(a)(1). Escorts are considered 4
providers for purposes of the statute. See S. Rep. No. 103-117, at 26 (1993) (noting 5
that “[p]ersons injured in the course of assisting patients or staff in gaining access 6
to a facility . . . may also sue”). 7
NYSCAA is the state analog to FACE. The applicable statutory text of 8
NYSCAA almost identically mirrors that of FACE. NYSCAA states that “[a] 9
person is guilty of criminal interference with health services . . . in the second 10
degree when: (a) by force or threat of force or by physical obstruction, he or she 11
intentionally injures, intimidates or interferes with, or attempts to injure, 12
intimidate or interfere with, another person because such other person was or is 13
obtaining or providing reproductive health services.” N.Y. Penal Law 14
§ 240.70(1)(a). Because of their similarities, we interpret the statutes coextensively 15
such that violations of FACE are also violations of NYSCAA, and vice versa. 16
Both FACE and NYSCAA provide the same definitions for the pertinent 17
terms. “Physical obstruction” is defined as “rendering impassable ingress to or 18

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34
egress from a facility that provides reproductive health services . . . or rendering 1
passage to or from such a facility . . . unreasonably difficult or hazardous. 18 2
U.S.C. § 248(e)(4); N.Y. Penal Law § 240.70(3)(d). The statutes define “interfere 3
with” as “to restrict a person’s freedom of movement.” 18 U.S.C. § 248(e)(2); N.Y. 4
Penal Law § 240.70(3)(b). “Intimidate” is defined as “to place a person in 5
reasonable apprehension of bodily harm to him- or herself or to another.” 18 6
U.S.C. § 248(e)(3); see also N.Y. Penal Law § 240.70(3)(c). 7
While neither statute defines “force” or “injure,” we rely on the common 8
meanings of those terms. In the context of a different federal statute, our Circuit 9
has defined “force” as “power, violence, or pressure directed against a person or 10
thing.” Dickson v. Ashcroft, 346 F.3d 44, 50 (2d Cir. 2003). “Injure” commonly 11
means “to inflict bodily hurt on.” Injure, MERRIAM -W EBSTER , https:// 12
www.merriam-webster.com/dictionary/injure (last visited January 24, 2021). 13
The statutes also incorporate a dual-intent requirement. Defendants must 14
have both an intent to injure, intimidate, or interfere and a motivation to do so 15
“because the interfered-with person was seeking, obtaining, or providing, or had 16
obtained or provided, or might obtain or provide, reproductive health services.” 17
Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir. 2004) (emphasis in original). The 18

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35
legislative history of FACE notes that the requirement that defendants 1
“intentionally injure, intimidate, or interfere” means that the defendant “intends 2
to perform the act and is aware of the natural and probable consequences.” 3
S. Rep. No. 103-117, at 24 n.39. Thus, as our Circuit has recognized, even when a 4
protestor’s goal is simply to share their beliefs through counseling or literature, 5
the protestor may still be liable for a FACE violation if they intentionally engage 6
in acts which naturally and probably will injure, intimidate, or interfere with 7
someone seeking or providing reproductive health services. See Operation Rescue, 8
273 F.3d at 194 (noting that plaintiffs are likely to prove certain protestor 9
activities violated FACE by disrupting access through physical obstruction 10
despite the possibility that “protestors’ purpose may have been to communicate 11
their views”). 12
The City Act is the local counterpart to FACE and NYSCAA. The City Act 13
proscribes, among other acts not at issue here: 14
1. To knowingly physically obstruct or block another person from 15
entering into or exiting from the premises of a reproductive health 16
care facility by physically striking, shoving, restraining, grabbing, or 17
otherwise subjecting a person to unwanted physical contact, or 18
attempting to do the same; 19

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36
2. To knowingly obstruct or block the premises of a reproductive 1
health care facility, so as to impede access to or from the facility, or 2
attempt to do the same; 3
3. To follow and harass another person within 15 feet of the premises 4
of a reproductive health care facility . . . . 5
6
N.Y.C. Admin. Code § 10-1003(a). 7
The OAG alleges that, contrary to the district court’s findings of fact and 8
conclusions of law, Defendants violated FACE, NYSCAA, and the City Act 9
through physically obstructing, making threats of force, using force, and 10
following and harassing Choices patients, their companions, and clinic providers 11
with the requisite intent. We address each of these claims in turn. 12
1. Physical obstruction 13
Under FACE and NYSCAA, the term “physical obstruction” means 14
“rendering impassable ingress to or egress from a facility that provides 15
reproductive health services . . . or rendering passage to or from such a facility 16
. . . unreasonably difficult or hazardous.” 18 U.S.C. § 248(e)(4); N.Y. Penal Law 17
§ 240.70(3)(d). Our Circuit has interpreted the term to encompass conduct such 18
as obstructing driveway access; slowing or stopping cars with one’s body or by 19
dispensing literature through car windows; blocking patients inside their 20
automobiles by standing close to car doors; slowing access with delay tactics 21

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37
such as dropping an item on the ground and retrieving it in slow motion; 1
engaging in protest activities in front of facility entrances and driveways; 2
confronting patients at close range; shouting at patients through a bullhorn; and 3
standing in front of pedestrians entering the building or clinic doors in order to 4
communicate with those entering or exiting. Operation Rescue, 273 F.3d at 194-95. 5
Conversely, legitimate protest activities like shouting at arriving patients and 6
protesting in angry tones do not constitute physical obstruction, even if such 7
activities make approaching the clinic “unpleasant and even emotionally 8
difficult.” Id. at 195. 9
Physical obstruction need not be direct. In United States v. Mahoney, the 10
D.C. Circuit addressed a case in which six defendants knelt or sat in front of an 11
abortion clinic’s main entrance. 247 F.3d 279, 283 (D.C. Cir. 2001). The D.C. 12
Circuit held that in doing so, those defendants had violated FACE. Id. A seventh 13
defendant, Mahoney, knelt in front of a locked door that was rarely used and 14
largely served as an emergency exit. Id. Mahoney argued that because the door 15
was locked, it was impossible for him to render impassable ingress to or egress 16
from the facility. Id. He also argued that his selection of this door shows he 17
lacked intent to obstruct or attempt to obstruct access. Id. The D.C. Circuit 18

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38
concluded otherwise. The court there said that Mahoney knelt at this door so he 1
would be arrested with the other demonstrators, and in doing so, “Mahoney 2
contributed to the disruption and to the interference with those trying to enter or 3
leave the clinic. . . . By contributing to the demonstration within a few feet of the 4
clinic entrances, Mahoney’s actions compelled patients to enter the clinic through 5
the ‘crowded and chaotic’ rear entrance.” Id. (citations omitted). The court 6
concluded that Mahoney also did in fact use his body to obstruct the door he 7
knelt in front of even though it was used only as an emergency exit. Id. 8
With these definitions in mind, we turn to the acts the OAG alleges 9
amount to physical obstruction. The OAG maintains that Defendants physically 10
obstructed pedestrians by using their bodies and signs to narrow the sidewalk, 11
crowd patients, block escorts, and hinder patients’ paths to the facility. It also 12
contends that Defendants physically obstructed cars by using their bodies to 13
impede both patients getting out of cars and cars leaving the clinic. The district 14
court determined that none of the OAG’s video and photo exhibits demonstrate 15
physical obstruction. Following our clear error review of the district court’s 16
findings of fact and de novo review of its conclusions of law on this issue, we 17

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39
conclude that many, but not all, of the exhibits show impermissible physical 1
obstruction. 2
We first discuss the exhibits that in our view show physical obstruction. 3
These are Exhibits 138, 119, 23, 137, 58, 105, and 307. We then address briefly 4
those exhibits that we, in agreement with the district court, consider insufficient 5
to support the OAG’s physical obstruction claims. These are Exhibits 7, 41, 102, 6
39, 55, 49B, and 31. 7
Exhibit 138 8
The district court explained that “Exhibit 138 shows that . . . [defendant] 9
Okuonghae approached a patient head on and attempted to provide her a 10
pamphlet.” Griepp, 2018 WL 3518527, at *44. The district court noted that 11
“[b]ecause Okuonghae was directly in the patient’s path, the patient, her 12
companion, and her escorts deviated slightly from their path to get around 13
Okuonghae.” Id. Even though Okuonghae stood directly in the patient’s path 14
and caused her to walk around him, the district court nonetheless concluded 15
Okuonghae did not physically obstruct the patient because he delayed the 16
patient “by one second, at most.” Id. 17

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40
We disagree. Our precedent does not make length of delay the operative 1
fact. For instance, in Operation Rescue, though we concluded that protestors 2
violated FACE by slowing moving cars and standing in front of patients trying to 3
enter the building, nowhere did we so much as mention the length of the ensuing 4
delay. See 273 F.3d at 194. That patients were delayed at all is sufficient to 5
establish a violation. 6
Nor does the statutory definition of physical obstruction as rendering 7
passage “unreasonably difficult” mean that minor delays are intrinsically 8
insufficient to count as violations. The term “unreasonably difficult” is 9
necessarily informed by context and not tied to any single metric or factor. At 10
Choices, there are typically two to three dozen escorts and protestors at a time on 11
the modestly sized sidewalk. Requiring patients to navigate through such a 12
chaotic scene, even if a patient is not subject to a lengthy delay or forced to 13
deviate significantly, is still making the patients’ access “unreasonably difficult.” 14
Thus, minor delays can, at least in some circumstances, support a physical 15
obstruction claim. But the district court took it as a matter of course that a minor 16
delay is inherently incidental and insufficient to make a patient’s access to the 17
clinic unreasonably difficult under the statute. See Griepp, 2018 WL 3518527, at 18

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41
*44. That assumption was legal error. Instead, the district court should consider 1
whether, given the circumstances present, deliberately standing in front of a 2
patient on a crowded and chaotic sidewalk such as the one outside Choices, even 3
for the shortest of times, made the patient’s access unreasonably difficult. This is 4
all the statute requires. The dissent claims this conclusion eviscerates the intent 5
requirement of FACE and NYSCAA. We do not think this is the case. We merely 6
discourage the district court from relying on only or largely the duration of the 7
impediment to conclude that Defendants’ actions do not violate the statutes. 8
Exhibit 119 9
The district court characterized Exhibit 119, a photo, as showing defendant 10
“Musco narrowing the sidewalk by holding two signs perpendicular to the Clinic 11
wall.” Griepp, 2018 WL 3518527, at *12. The district court specifically noted, 12
however, that Musco was “narrowing the low-traffic portion of the sidewalk to 13
the south of the Clinic entrance, facing her sign north” and thus seemed “to be 14
making her signs visible to the majority of patients who approach from Jamaica 15
Avenue—all of whom would reach the Clinic door without passing Musco.” Id. 16
Although Musco was narrowing the sidewalk, the district court said that, even if 17
the OAG could establish intent to obstruct access, Exhibit 119 did not 18

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42
demonstrate obstruction because “the photo does not show any patients 1
approaching, and because patients rarely approached Choices’ main entrance 2
from the south.” Id. (citations omitted). This constitutes legal error. 3
We first address whether the OAG could establish that defendant Musco 4
acted with the requisite intent in Exhibit 119. The district court suggested there 5
was insufficient evidence of intent because Musco was simply making her signs 6
visible to patients coming from Jamaica Avenue. Yet Musco’s aim of having her 7
sign viewed does not foreclose a finding of intent under our precedent. The 8
desire of protesters to communicate their message is not mutually exclusive with 9
an intent to interfere, intimidate, or injure. See Operation Rescue, 273 F.3d at 194. 10
Rather, the OAG needed only to establish that Musco intended to place her signs 11
in this manner and was aware that interference, intimidation, or injury was a 12
natural and probable consequence of doing so and that she did so “out of an 13
abortion-related motive.” See S. Rep. No. 103-117, at 24 n.39. Given that Musco’s 14
signs spanned approximately two-thirds of the sidewalk and significantly 15
shortened the space available for walking, we cannot say that Musco was 16
unaware that her signs would interfere with pedestrian access. Musco was also 17
clearly acting out of an abortion-related motive, given the content of her sign and 18

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43
the plethora of evidence on the record supporting this motive. We therefore 1
disagree with the district court’s suggestion that Musco did not possess the 2
necessary intent. 3
The district court also relied on the lack of patients in the photograph and 4
the low-traffic area in concluding there was no obstruction. That no patients 5
were in the photograph does not preclude a FACE violation, however. For one, 6
the statute prohibits attempted obstruction, not just actual obstruction; defendant 7
Musco could accordingly still have violated FACE even if no patient ever 8
appeared. See 18 U.S.C. § 248(a)(1). Moreover, a defendant is liable for physical 9
obstruction even when the relevant acts occur in a low-traffic area. FACE broadly 10
prohibits obstruction of “ingress to or egress from a facility.” Id. § (e)(4). It does 11
not limit violations to only heavily frequented areas. See Mahoney, 247 F.3d at 12
283-84 (“The statute does not distinguish between frequently used and 13
infrequently used means of egress . . . .”). To decide that no FACE violation 14
occurred because few patients rarely approached the Choices entrance from the 15
south would impermissibly alter the terms of the statute and read in a 16
requirement that does not exist. See Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 17

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44
1900(2019) (“In this, as in any field of statutory interpretation, it is our duty to 1
respect not only what Congress wrote but, as importantly, what it didn’t write.”). 2
In placing her signs so that they spanned two-thirds of the sidewalk and 3
thereby significantly limited the space available, defendant Musco did engage, or 4
attempt to engage, in physical obstruction. Musco’s goal of making her signs 5
visible, the lack of patients in the photograph, and the sidewalk’s infrequent use 6
do not change our conclusion. 7
Exhibit 23 8
The district court described Exhibit 23 as showing escort “Brady and 9
another escort accompanying a patient . . . to the main [Choices] entrance” when 10
both escort program director Greenberg and defendant Okuonghae approach the 11
patient and escorts. Griepp, 2018 WL 3518527, at *18. “Greenberg is in the 12
patient’s path” while Okuonghae is “reaching out his arm in an attempt to hand 13
[the patient] a pamphlet.” Id. “Greenberg then moves out of the way as the 14
patient’s two escorts step in front of her and motion for Okuonghae to get even 15
further out of the way.” Id. The district court said that there is no obstruction in 16
Exhibit 23, just “escorts briefly and accidentally stepping in front of patients’ 17

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45
paths to the Clinic.” Id. at *43.11 We find that the district court took an unduly 1
narrow approach in assessing whether obstruction occurred. 2
Though it may have been an escort that stepped in front of the patient, 3
defendant Okuonghae and other protestors indirectly obstructed the patient by 4
causing this result. Exhibit 23 shows protestors approaching from various angles. 5
Crowding in this manner and thereby creating a logjam in which others 6
inadvertently impede a patient is still obstruction. As the D.C. Circuit has said, 7
FACE “does not limit physical obstruction to bodily obstruction, but rather is 8
broadly phrased to prohibit any act rendering passage to the facility 9
unreasonably difficult.” See Mahoney, 247 F.3d at 284. Rather, just as Mahoney 10
was liable for physical obstruction by indirectly forcing patients to enter the 11
clinic in a crowded and chaotic fashion, defendant Okuonghae and the other 12
protestors in this exhibit may be so liable here. 13
11 The district court also stated that the “entire interaction slows the patient’s
access to Choices by perhaps a second.” Griepp, 2018 WL 3518527, at *18. To the
extent the district court meant this observation to serve as an additional reason
for why no obstruction is present in Exhibit 23, we reiterate that for the reasons
we provided in our discussion of Exhibit 138, supra, even a momentary delay
could render access unreasonably difficult.

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46
We are thus not persuaded that simply because escort program director 1
Greenberg, rather than Okuonghae, stepped in front of the patient, no physical 2
obstruction occurred. Okuonghae and the other protestors’ actions in crowding 3
patients and escorts necessarily caused Greenberg to step in front of the patient. 4
This crowding consequently rendered passage to Choices unreasonably difficult 5
and constitutes physical obstruction. 6
Exhibits 137, 58, and 105 7
The next three exhibits we address, Exhibits 137, 58, and 105, involve 8
protestor conduct around vehicles. The district court determined that these 9
exhibits fail to show FACE violations. Griepp, 2018 WL 3518527, at *43. Yet our 10
precedent compels the opposite conclusion. 11
Exhibit 137 shows that, after program director Greenberg escorted a 12
patient from a car to the clinic, defendant “Thomas stepped to the open car door 13
and leaned down to speak to the driver” for approximately one minute. Id. at *15. 14
It is apparent that while Thomas was standing in between the car and the open 15
passenger door, it would have been unreasonably difficult or hazardous for the 16
driver to leave the clinic. If the car had attempted to pull away, the car door 17
could have slammed shut on Thomas. And because impeding a vehicle’s exit 18

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47
from a facility is physical obstruction, 18 U.S.C. § 248(e)(4) (defining physical 1
obstruction as rendering impassable or unreasonably difficult or hazardous 2
“ingress to or egress from a facility” (emphasis added)); N.Y. Penal Law 3
§ 240.70(3)(d) (same); N.Y.C. Admin. Code. § 10-1003(a)(2) (prohibiting conduct 4
to “impede access to or from the facility” (emphasis added)), there is no question 5
that Defendant Thomas’s conduct in Exhibit 137 falls squarely within the 6
statutory definition of physical obstruction. See Operation Rescue, 273 F.3d at 194 7
(stating that defendant physically obstructed cars by “using her body to slow 8
moving cars and pushing literature and pamphlets through car windows”). 9
The district court’s treatment of Exhibits 58 and 105 is similarly flawed. 10
The district court states that “Exhibit 58 shows [defendant] Okuonghae leaning 11
beside and speaking into an open car window,” but then goes on to state that it 12
“does not suggest a non-consensual interaction—let alone that Okuonghae 13
obstructed access to or from the Clinic.” Griepp, 2018 WL 3518527, at *18. Yet 14
while Okuonghae is next to the car window, his hands touch the passenger 15
window frame and even enter the car when gesturing. Ex. 58. Had the car driven 16
away while Okuonghae’s hands were on the window frame or inside the car, the 17
window frame would have struck Okuonghae’s hands. Okuonghae’s conduct 18

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thus caused the car’s egress from the clinic to be unreasonably difficult or 1
hazardous. 2
Similarly, in Exhibit 105, after a patient has left her car and walked to 3
Choices, defendant Musco “approach[es] the car and attempt[s] to hand the 4
driver a pamphlet.” Id. at *12. “Musco appears to speak to the driver for about 5
thirty seconds before returning to her post on the sidewalk . . . .” Id. The district 6
court concluded that this exhibit did not show a “non-consensual interaction[]— 7
let alone that Musco . . . impeded the driver[] from leaving.” Id. at *12. But Musco 8
is physically leaning onto the passenger door, resting her purse and her hands on 9
the passenger window frame. Ex. 105. This made the car’s egress unreasonably 10
difficult or hazardous because driving away with Musco leaning onto the door 11
would have caused Musco to collide with the car or fallen. 12
The dissent takes issue with our visual interpretation of these exhibits. 13
Despite acknowledging that the videos were short and without enough 14
contextual information to discern consent, the dissent contends that we 15
improperly impose our interpretation over the district court’s evaluation that the 16
conversations were consensual. However, this disagreement splits hairs and 17
misses the point. There is no statutory exception for consensual conversations. 18

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The question is whether an individual, with the intent to “intimidate such person 1
. . . from[] obtaining or providing reproductive health services,” “render[s] 2
passage to or from such a facility . . . unreasonably difficult or hazardous.” 18 3
U.S.C. § 248(a)(1), (e)(4). Okuonghae and Musco’s intrusions into vehicles, 4
making it difficult and hazardous for drivers to move away from them, clearly 5
impedes passage to or from the facility. This falls directly within the confines of 6
conduct we have previously discussed as violative of FACE. See Operation Rescue, 7
273 F.3d at 194. 8
The district court’s legal analysis regarding the import of these clips was 9
erroneous because it improperly focused on whether the conversations appeared 10
consensual rather than on whether defendants Okuonghae or Musco’s actions 11
rendered the cars’ egress unreasonably difficult or hazardous. Rather, the 12
statutory elements are satisfied here. Okuonghae and Musco’s conduct in 13
touching the cars in this manner made the cars’ egress unreasonably difficult or 14
hazardous, satisfying the physical obstruction requirement. See Operation Rescue, 15
273 F.3d at 194. It also restricted the cars’ freedom of movement, satisfying the 16
interference requirement. Therefore, regardless of whether the conversations 17

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appeared consensual, defendants Okuonghae and Musco violated FACE and 1
NYSCAA by physically obstructing the cars in Exhibits 58 and 105. 2
Exhibit 307 3
We next turn to Exhibit 307. We believe the district court’s analysis of this 4
exhibit relied on clearly erroneous findings of fact. The district court stated that 5
in Exhibit 307, a patient’s access “was accidentally and briefly impeded” by an 6
escort. Griepp, 2018 WL 3518527, at *11. According to the district court, defendant 7
“R. George reached the patient first and handed the patient a pamphlet.” Id. 8
Afterwards, two escorts reached the patient and positioned themselves on either 9
side of her; in doing so, one escort “stepp[ed] in front of R. George and slow[ed] 10
his pace, forcing R. George to step around the escort to access the patient and 11
continue his attempts to engage her in conversation. As R. George did so, the 12
escort on the far side of the patient stepped partially and then completely in front 13
of her in an attempt to block R. George’s access to her.” Id. (citation omitted). The 14
patient then had to “slow down and then walk around the other side of the 15
escort standing in front of her.” Id. The district court held that R. George “neither 16
intended to impede the patient’s access to the Clinic entrance, nor did so in fact” 17

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because the obstruction resulted from “the escort’s attempts to block R. George 1
from reaching the patient.” Id. 2
The district court clearly erred in its interpretation of the video. Exhibit 307 3
shows that defendant R. George actively stepped around the escort to access the 4
patient. He was then walking directly in front of the patient for a few moments 5
while attempting to engage with the patient. As a result, both the patient and the 6
escort slowed to a near stop, and the patient was forced to walk around to the 7
other side of both escorts to have a clear path into the clinic. Ex. 307. After the 8
patient had proceeded into Choices, R. George returned down the length of the 9
sidewalk and was reprimanded by a police officer for blocking the patient. Ex. 10
307. 11
Positioning oneself directly in front of a patient in this manner is 12
obstruction. See Operation Rescue, 273 F.3d at 194 (noting that standing in front of 13
patients and clinic doors is obstruction). The dissent also acknowledges that R. 14
George did step in front of the patient, highlighting that the impediment was 15
brief and that the patient nevertheless was able to enter Choices. Though the 16
patient may not have stopped walking, the statutes do not require that the 17
patient come to a standstill or for ingress to be rendered impossible for a 18

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violation to occur. Defendant R. George’s conduct made the patient’s access 1
unreasonably difficult because it forced her to change course in the midst of a 2
busy and crowded sidewalk. See Mahoney, 247 F.3d at 284 (explaining that 3
indirect forms of obstruction are covered by the “broadly phrased” FACE). 4
Therefore, R. George physically obstructed the patient in violation of the statutes. 5
Exhibit 7 6
We agree with the district court’s conclusions that Exhibits 7, 41, 102, 39, 7
55, 49B, and 31 do not show physical obstruction in violation of FACE. The 8
dissent characterizes this conclusion as one that we are disappointed to reach in a 9
pre-ordained attempt to “disturb” the district court’s impressive and careful 10
work. Dissenting Op. at 3. That is, of course, far from the truth. As with any 11
record as complex and multi-faceted as this, it is entirely plausible for some of 12
the district court’s analyses to be correct and some incorrect. That we reach 13
different conclusions on different portions of the record is not indicative of any 14
analytical flaw but rather the consequences of our duty, which is to apply the 15
most precise interpretation of the law to the varying facts before us. 16
Turning first to Exhibit 7, the district court said the video “shows 17
[defendant] Braxton attempting to speak with or hand pamphlets to a handful of 18

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approaching patients and companions over the course of nearly six minutes. It 1
does not show Braxton stopping, slowing, or otherwise delaying anyone’s access 2
to the Clinic door.” Griepp, 2018 WL 3518527, at *43 (citation omitted). We agree 3
with the district court’s characterization of defendant Braxton’s conduct. Simply 4
attempting to speak with or hand pamphlets to patients, without more, does not 5
give rise to a FACE violation. Because there is no indication that Braxton did, or 6
attempted to, delay or otherwise inhibit access to Choices, Exhibit 7 does not 7
show impermissible physical obstruction. 8
Exhibits 41 and 102 9
Exhibit 41 shows defendant “Thomas simply lift[ing] up his sign in an 10
attempt to make it visible to” the approaching patient, who walks into Choices 11
without impediment. Griepp, 2018 WL 3518527, at *15 Similarly, Exhibit 102 12
shows “Thomas stand[ing] in the same spot on the sidewalk with a sign and a 13
handful of pamphlets.” Id. With regard to Exhibits 41 and 102, the district court 14
wrote that the exhibits show defendant “Thomas standing in the middle of the 15
sidewalk, directly in front of the Clinic entrance,” but that neither exhibit shows 16
Thomas blocking, delaying, or otherwise obstructing patients. Id. We affirm the 17
district court’s conclusion as to these two exhibits. In neither video were the 18

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signs positioned in such a way that they narrowed the sidewalk or otherwise 1
caused crowding.12 Nor is Thomas standing directly in front of the entrance such 2
that entering or exiting the facility would be unreasonably difficult or hazardous. 3
Accordingly, Thomas did not physically obstruct patients or escorts with his 4
signs in either exhibit. 5
Exhibit 39 6
Exhibit 39 shows defendant “R. George approach[ing] a patient and her 7
companion as they exited their car and removed a child from the back seat. Once 8
R. George approached the patient and companion, it appears that four 9
protestors—Musco, Okuonghae, Thomas, and R. George—were speaking to 10
them at the same time.” Id. at *11 (citation omitted). “After about one minute, the 11
patient took a stroller from the back seat of the car to the end of the sidewalk, 12
where three protestors and two escorts were standing. One of the escorts was in 13
the patient’s direct path, and immediately moved out of the way. The patient 14
12 With regard to Exhibit 102, the district court noted that “[f]ar from showing
obstructed patient access to the Clinic, Exhibit 102 does not show even a single
patient trying to enter the facility.” Griepp, 2018 WL 3518527, at *15. Though we
agree that the video does not show obstruction, we reiterate that the absence of
patients in the exhibit is insufficient to preclude a FACE violation, as discussed
with Exhibit 119, supra.

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then put the child in the stroller and walked into [Choices] without impediment 1
as Okuonghae spoke to the patient’s companion.” Id. at *18 (citations omitted). 2
As the district court noted, “[n]one of the protestors obstructed or 3
otherwise impeded the patient’s or the companion’s access to the Clinic.” Id. at 4
*11. Although defendant R. George approached the car, neither he nor any other 5
protestor stood so close to the car that they inhibited the patient’s movements in 6
securing her child or moving towards Choices. Though we recognize that 7
protestors approaching a patient as she attempts to get a young child out of the 8
car can be overwhelming and intimidating, absent delay or impairment of some 9
kind, we cannot say that physical obstruction occurred. 10
Exhibit 55 11
In Exhibit 55, defendant “Richards and two nearby escorts spotted the 12
approaching patient at the same time.” Id. at *20. The escorts “established body 13
position on Richards, boxed her out, and created a lane to the door for the 14
approaching patient.” Id. Richards “quickly found herself in the patient’s way” 15
after she “attempted to dart through that lane to reach the patient,” and when 16
“Richards immediately attempted to get out of the way and reach the patient on 17
the other side of one of the escort[s],” the patient “did the same, causing Richards 18

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to be in the patient’s way once again.” Id. After the patient gestured that she was 1
attempting to reach the clinic entrance, “Richards responded by quickly moving 2
out of her way and abandoning her attempt to interact with the patient.” Id. 3
Though the district court concluded that Richards “briefly impeded a 4
patient’s access to Choices,” id., she did so without the requisite intent, id. at *44. 5
We agree. Although some minor delays may constitute a FACE violation in 6
certain circumstances, the statute requires a defendant be aware of the natural 7
and probable consequences of her action for the intent requirement to be 8
satisfied. S. Rep. No. 103-117. Richards moved quickly out of the patient’s way 9
after realizing that she was standing in front of her, which belies the OAG’s 10
argument that Richards intended to physically obstruct the patient. Richards’s 11
conduct is also an important comparison with R. George’s conduct in Exhibit 307. 12
During that incident, R. George directly stepped in front of the patient and 13
continued to engage with her from that position. Although R. George ultimately 14
left, he did not do so with the urgency and immediacy demonstrated by 15
Richards, which suggests her blockage was inadvertent. Moreover, the 16
movements of Richards, the escorts, and the patient in Exhibit 55 were largely 17
simultaneous, making it difficult to distinguish between intent and inadvertence. 18

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Because the OAG has not met its burden in demonstrating intent, Exhibit 55 does 1
not show obstruction. 2
Exhibit 49B 3
The district court noted that Exhibit 49B shows defendant Musco 4
“attempting to hand the driver of a car a pamphlet through an open car 5
window.” Griepp, 2018 WL 3518527, at *12. Musco “lean[ed] into the open 6
passenger-side window[] of” the car and was “speaking with the occupants.” Id. 7
Because the conversation seemed consensual, the district court suggested that it 8
could not conclude Musco physically obstructed the car. Id. We affirm the court’s 9
conclusion but on different grounds. As we explained in our discussion of 10
Exhibits 58 and 105, supra, FACE violations do not turn on the appearance of 11
consent. In those exhibits, violations were apparent because defendants 12
Okuonghae and Musco were physically touching the car, making it unreasonably 13
hazardous or difficult for the cars to drive away. Here, however, Musco is 14
neither touching the car nor leaning so far into the window that driving away 15
would have been hazardous or difficult at all, let alone unreasonably so. On this 16
basis, we agree that Exhibit 49B does not show physical obstruction. 17

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Exhibit 31 1
Similarly, Exhibit 31 does not show physical obstruction. As we explained 2
in section I.B.1, supra, the district court’s characterization of Exhibit 31 was not 3
clearly erroneous. Because the district court found that “the escorts were not 4
trying to walk toward an arriving patient at all,” Griepp, 2018 WL 3518527, at *11 5
(internal quotation marks omitted), there is no argument that defendant R. 6
George blocked the escorts’ path to the patient. Nor does the video show R. 7
George impeding the patient’s access to the Clinic, as the OAG argues, because 8
the approaching patient “walked right past [R. George] without deviating from 9
her path or breaking her stride at all.” Id. We therefore agree with the district 10
court that Exhibit 31 does not show physical obstruction. 11
Conclusion on the OAG’s Physical Obstruction Claim 12
The dissent contends that, in our careful review of the exhibits and our 13
conclusions on each, we have eviscerated the intent requirements of the requisite 14
statutes and, in effect, created “buffer zone” statutes like the one discussed in Hill 15
v. Colorado. See 530 U.S. 703, 707 (2000); see also Dissenting Op. at 17-20. At the 16
outset, we note that the statutes at issue here prohibit not only “intentionally 17
injur[ing or] intimidat[ing]” individuals seeking or providing reproductive 18

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health services, but also the less severe act of even “interfer[ing]” with them. 18 1
U.S.C. § 248(a)(1); see also N.Y. Penal Law § 240.70(1)(a). Focusing on exclusively 2
the first two categories of acts might suggest that only extreme protester 3
behavior qualifies, but that would ignore the text of the statutes, which clearly 4
also include intentional interference. Interference, in turn, “means to restrict a 5
person’s freedom of movement.” 18 U.S.C. § 248(e)(2); see also N.Y. Penal Law 6
§ 240.70(3)(b). This encompasses a wide swath of conduct. 7
In any event, a review of our actual conclusions reveals that we have 8
neither ignored the intent requirements nor inadvertently created “buffer zone” 9
statutes but rather embarked on a careful, fact-based review to provide guidance 10
on where district courts should draw lines in this challenging area of the law. In 11
many of the exhibits discussed above, we have affirmed the district court’s 12
judgment that there was no physical obstruction despite the limited space 13
between patients, escorts, and protesters. In our view, it is indeed possible for 14
protesters to be on the same sidewalk as patients and escorts and even for them 15
to interact with them, as long as they do not tread into the zone of “interference.” 16
What we deem legal error is the addition of unwritten requirements to this cause 17
of action—such as a requisite length of obstruction, or that only frequently used 18

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ingresses or egresses are capable of being obstructed. Moreover, our 1
interpretation of intent is consistent with the common legal understanding of 2
scienter and the legislative history of the applicable statutes, which adds to 3
traditional scienter only the requirement “that the offender acted out of an 4
abortion-related motive.” S. Rep. No. 103-117, at 24 n.39; see also, e.g., United 5
States v. Aguilar, 515 U.S. 593, 598-99 (1995) (explaining that, under 18 U.S.C. 6
§ 1503, which forbids any “endeavor[] to influence, intimate, or impede” jurors 7
or court officers, what matters is whether the act has “the natural and probable 8
effect of interfering with the due administration of justice” (internal quotation 9
marks omitted)). 10
We hold that FACE prohibits, in certain circumstances, delaying patients 11
even for a brief amount of time, crowding patients directly or indirectly with 12
bodies or signs, and touching or leaning into the windows and doors of cars 13
exiting a facility. Accordingly, the district court erred in concluding that Exhibits 14
138, 119, 23, 137, 58, 105, and 307 did not demonstrate physical obstruction. 15
2. Threats of force 16
FACE proscribes making a “threat of force,” which our Circuit has 17
interpreted to mean only true threats not protected under the First Amendment. 18

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Operation Rescue, 273 F.3d at 194. When reviewing a district court’s determination 1
on the issue of whether particular speech was a true threat, we conduct an 2
independent examination of the record as a whole. Id. at 196. 3
To determine whether speech is a true threat, we ask whether an ordinary, 4
reasonable recipient familiar with the context of the communication would 5
interpret the speech as a threat of injury. United States v. Turner, 720 F.3d 411, 420 6
& n.4 (2d Cir. 2013). Our inquiry is informed by whether the threat is, on its face 7
and under the circumstances, so “unequivocal, unconditional, immediate and 8
specific as to the person threatened as to convey a gravity of purpose and 9
imminent prospect of execution.” Operation Rescue, 273 F.3d at 196. However, we 10
have still found threats “that were both conditional and inexplicit.” Turner, 720 11
F.3d at 424. Nor is there any requirement that the statements on their face show 12
that the defendant personally intended to take violent action, id., but the 13
recipient must be afraid of the threat’s execution by the speaker or their co- 14
conspirators, Operation Rescue, 273 F.3d at 196. 15
Context is also critical. For instance, in United States v. Dillard, the reference 16
of a murdered abortion provider in a letter gave it “an additional threatening 17
undertone.” 795 F.3d 1191, 1201 (10th Cir. 2015). In Dillard, the defendant sent a 18

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letter to Dr. Means, who planned to provide abortion services. Id. at 1196. Dr. 1
Tiller, the last doctor to do so in the area, had been shot one year earlier by an 2
anti-abortion activist. Id. The defendant’s letter to Dr. Means, which sought to 3
persuade Dr. Means to change her plans, writing, “[i]f Tiller could speak from 4
hell, he would tell you what a soulless existence you are purposefully 5
considering, all in the name of greed.” Id. The letter also said, “You will be 6
checking under your car everyday—because maybe today is the day someone 7
places an explosive under it.” Id. Dr. Means was “very anxious that Defendant or 8
her associates would indeed place an explosive under her car as suggested by the 9
letter.” Id. at 1197. The United States brought a civil enforcement action under 10
FACE, alleging that the defendant’s letter constituted a threat of force against Dr. 11
Means. Id. at 1197-98. The district court in Dillard granted summary judgment 12
based on the defendant’s argument that the alleged threat was not imminent, 13
likely, or unconditional and because the letter said nothing about what the 14
defendant would do, only what others might do. Id. at 1198. 15
The Tenth Circuit reversed. The Tenth Circuit first explained that, simply 16
because the letter was conditional (in that it suggested Dr. Means faced harm if 17
she followed through on her plan to provide abortion services) did not preclude 18

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a conclusion that it was a threat of force. Id. at 1200. The court then said that 1
although the letter “suggested violence was not imminent, but would potentially 2
occur only at some point in the future after Dr. Means began offering abortion 3
services,” a threat of violence need not be imminent so long as it “conveys a 4
gravity of purpose and likelihood of execution.” Id. (brackets omitted) (quoting 5
United States v. Crews, 781 F.2d 826, 832 (10th Cir. 1986). Finally, the Tenth Circuit 6
noted that even though the defendant “only stated that an unidentified 7
‘someone’ might place explosives under Dr. Means’ car,” the letter could still be 8
reasonably seen as a threat because “a direct statement of personal intent is not 9
necessary” for a communication to be so construed. Id. at 1200. The court 10
explained that a “defendant cannot escape potential liability simply by using the 11
passive voice or couching a threat in terms of ‘someone’ committing an act of 12
violence, so long as a reasonable recipient could conclude, based on the language 13
of the communication and the context in which it is delivered, that this was in 14
fact a veiled threat of violence by the defendant or by someone acting under her 15
direction or in conspiracy with her.” Id. at 1201. And given the area’s history of 16
violence against abortion providers, Dr. Tiller’s murder, and the defendant’s 17
relationship with Dr. Tiller’s murderer, “the letter’s reference to someone placing 18

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an explosive under Dr. Means’ car may reasonably be taken as a serious and 1
likely threat of injury.” Id. 2
Similarly, the Ninth Circuit relied on context in holding that “GUILTY” 3
posters identifying specific physicians working at reproductive health clinics 4
were true threats. Planned Parenthood of the Columbia/Willamette, Inc. v. Am. 5
Coalition of Life Activists, 290 F.3d 1058, 1062, 1085 (9th Cir. 2002). These posters 6
“were circulated in the wake of a series of ‘WANTED’ and ‘unWANTED’ posters 7
that had identified other doctors who performed abortions before they were 8
murdered.” Id. at 1062. Like the “WANTED” and “unWANTED” posters, the 9
“GUILTY” posters included the names and addresses of the physicians 10
identified. Id. at 1064-65. The physicians identified on the “GUILTY” posters 11
were aware of the circulation of “WANTED” and “unWANTED” posters and of 12
the identified doctors’ subsequent deaths. Id. at 1066. These physicians were thus 13
frightened by the “GUILTY” posters, just as the posters’ creators had expected. 14
Id. at 1065-66. 15
The Ninth Circuit held that, although the “GUILTY” posters did not 16
contain any language that was “overtly threatening,” the true threat analysis 17
“turns on the poster pattern.” Id. at 1085. Namely, “it is use of the ‘wanted’-type 18

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format in the context of the poster pattern—poster followed by murder—that 1
constitutes the threat.” Id. Thus, even though the posters did not contain overtly 2
threatening language, “knowing this pattern, knowing that unlawful action had 3
followed ‘WANTED’ posters . . ., and knowing that ‘wanted’-type posters were 4
intimidating and caused fear of serious harm to those named on them,” the 5
defendants made the “GUILTY” posters and therein used a threat of force. Id. In 6
other words, the posters “connote something they do not literally say, yet both 7
the actor and the recipient get the message.” Id. 8
Similarly, the Eighth Circuit found that parking two Ryder trucks, 9
unattended and with no apparent purpose, in the entrance driveways of clinics 10
was a true threat. United States v. Hart, 212 F.3d 1067, 1072 (8th Cir. 2000). Clinic 11
employees were “alarmed by the presence of the trucks” because it reminded 12
them of the 1995 Oklahoma City bombing, which also involved a Ryder truck. Id 13
at 1070. The defendant argued that the trucks were not inherently dangerous or 14
accompanied by threats of death or physical injury, so their placement alone 15
cannot be considered a threat of force. Id. at 1072. The Eighth Circuit rejected this 16
argument. Relying on the circumstances of an unexplained truck parked near the 17
clinics “coupled with the similarity to the well-known events of the Oklahoma 18

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City bombing,” the court said that the trucks “were reasonably interpreted by 1
clinic staff and police officers as a threat to injure.” Id. 2
Thus, with an eye to context, we assess whether the statements the OAG 3
raises in this appeal were true threats. The OAG argues the district court erred in 4
concluding that the following statements were not true threats: (1) defendant 5
Thomas’s statements to escorts, following a shooting by an anti-abortion 6
protestor at a Planned Parenthood in Colorado, that “[y]ou never know when 7
you’re going to die,” that “they could die at any moment,” that “they never 8
know when death may come,” and that “they could die from being shot by a 9
bullet while on the sidewalk,” Griepp, 2018 WL 3518527, at *35 (citations and 10
internal quotation marks omitted); (2) Thomas’s statements to escort program 11
director Greenberg following a knife fight between two unknown persons across 12
the street from Choices that “[t]hat could be you one day. Someone could pull a 13
knife on you,” id. (citation omitted); (3) Thomas’s statements to patients, made 14
when standing within inches of patients at times, that the escorts “won’t be here 15
when you leave,” id. at *38 (quoting testimony); (4) Thomas’s statement to 16
Greenberg that she was “going to kick the bucket soon, Marylou,” id. at *35 17
(citation omitted); and (5) defendant R. George’s statement to escorts that “the 18

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people who went to work on 9/11 didn’t know what was going to happen that 1
day, you never know when you’re going to die,” id. (quoting record). We 2
conclude that of these statements, only defendant Thomas’s statements to the 3
escorts after the Planned Parenthood attack, Thomas’s statements to Greenberg 4
after the knife fight, and Thomas’s statements to patients are true threats. 5
Thomas’s Statements to the Escorts After a Planned Parenthood Attack in 6
Colorado 7
The district court did not construe the statements made by defendant 8
Thomas to escorts that “[y]ou never know when you’re going to die,” that “they 9
could die at any moment,” that “they never know when death may come,” and 10
that “they could die from being shot by a bullet while on the sidewalk,” Griepp, 11
2018 WL 3518527, at *35 (citation omitted), as true threats primarily because 12
Thomas regularly preached about the fragility of life and the need to repent, id. 13
The district court placed special emphasis on the fact that one escort had testified 14
that Thomas said “you never know when you’re going to die” nearly every 15
Saturday and connected this statement with repentance and acceptance of God. 16
Id. (quoting testimony). The district court discounted the escorts’ fears further by 17
noting that escort Garnick testified that the escorts “wondered ‘whether to take 18

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that as a serious threat and whether it was necessary to call the police’” but also 1
expressed “‘concern[]’” that the threat “‘was vague and often, when they fill out 2
a complaint, they want more specific threats.’” Id. at *36. We come to a different 3
conclusion based on our review of the record. 4
In context, a reasonable recipient would interpret the statements as true 5
threats. The context here includes the shooting at Planned Parenthood just a few 6
months prior, and as our sister circuits have noted, past violence—especially 7
violence against abortion clinics or providers—weighs heavily in favor of finding 8
that a statement rises to the level of a true threat. See Dillard, 795 F.3d at 1201; 9
Planned Parenthood, 290 F.3d at 1078-79; Hart, 212 F.3d at 1071. In light of this, a 10
reasonable recipient of these statements, such as the statement referencing a 11
specific act of violence or cause of death (“being shot by a bullet,” Griepp, 2018 12
WL 3518527, at *13 (citation omitted)), would view the statements as a veiled 13
threat that either defendant Thomas or one of his fellow protestors would carry 14
out. 15
Defendant Thomas’s words here are very different from the merely 16
unsettling political expression at issue in Operation Rescue. There, the statement 17
that “killing babies is no different than killing doctors,” 273 F.3d at 196, was 18

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simply an articulation of the protestor’s beliefs that the fetuses are equal to 1
doctors and the moral culpability between the two acts is similar. The statement 2
carries no implication of future violence. In contrast, the statements here not only 3
referenced the escorts’ deaths, but also specifically mentioned shooting as a 4
possible cause of their deaths. Given these facts, an ordinary, reasonable person 5
would interpret Thomas’s statements to the escorts as threats. 6
We do not agree that defendant Thomas’s frequent preaching about death 7
and repentance minimizes the threatening aspect of the speech. The two are not 8
comparable. A statement that “you never know when you’re going to die” is 9
fundamentally different from a statement that you “could die from being shot by 10
a bullet while on the sidewalk” shortly after a shooting. The specification of the 11
means of death in combination with the analogy to a recent incident of violence 12
transforms the statements at issue into something more insidious and objectively 13
threatening. See Dillard, 795 F.3d at 1201; Planned Parenthood, 290 F.3d at 1078-79; 14
Hart, 212 F.3d at 1071. 15
The statements were also subjectively frightening. There is evidence in the 16
record that the escorts felt the statements were “threatening and scary.” App’x at 17
1203, 2263. The testimony that the escorts wondered whether to report the 18

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shooting threat to the police does not undercut this evidence. Rather, it shows 1
that the escorts were alarmed and wanted police intervention, but they worried 2
they would not be taken seriously because of the high bar required for police 3
action. Instead of undermining the escorts’ fear, this testimony reinforces it. 4
With the context of violence at abortion centers, the statements defendant 5
Thomas made referencing these events in conjunction with the escorts’ deaths is 6
more than enough for a reasonable person to interpret the statements as true 7
threats. 8
Thomas’s Statements to Greenberg after a Knife Fight near Choices 9
For the same reasons, we conclude that defendant Thomas’s statement to 10
escort program director Greenberg following a knife fight between two unknown 11
persons across the street from Choices that “[t]hat could be you one day. 12
Someone could pull a knife on you,” Griepp, 2018 WL 3518527, at *35 (citation 13
omitted), would be interpreted by a reasonable recipient as a true threat. 14
Although this statement does not allude to violence at an abortion center, its 15
reference to an attack near Choices has the same effect. The context of a Choices- 16
specific incident shifts the statement from the abstract into the concrete. Having 17
seen the knife fight nearby firsthand, Greenberg was aware that such an attack 18

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was not only conceivable but also a reality in that area. As a result, the context of 1
the knife fight makes defendant Thomas’s comment here, like the comments 2
about being shot, alarming to a degree that a reasonable listener would construe 3
it to be a threat of violence. 4
Thomas’s Statements to Patients 5
The district court did not consider defendant Thomas’s telling patients 6
entering Choices that the escorts “won’t be here when you leave” to be a true 7
threat. See id. at *38 (quoting testimony). The district court rested its 8
determination primarily on its belief that the statement was equivocal and the 9
fact that Thomas never preaches in a threatening tone in the video evidence, so 10
there is no reason to believe that he made this statement in a threatening tone 11
either. Id. We disagree. 12
A reasonable patient familiar with the context of the statement would find 13
it threatening. We believe the statement that the escorts “won’t be here when you 14
leave” is on its face specific, immediate, and unequivocal. The statement was said 15
directly to patients, sometimes within inches of them. Id. In addition, the 16
statement conveys a sense of immediacy because Thomas tells patients as they 17
enter the clinic what will occur upon their exit. See id. Furthermore, the statement 18

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is unequivocal in stating that escorts “won’t” be there for patients when they 1
leave. Although the statement references a future harm and contains no explicit 2
statement of personal intent, the implication of impending harm is clear. This 3
warning would leave a reasonable patient with the marked perception that 4
Thomas or the other protestors might harm them after the escorts leave for the 5
day, thereby constituting a veiled threat. See Dillard, 795 F.3d at 1201 (warning 6
that “rigid adherence to the literal meaning of a communication without regard 7
to its reasonable connotations . . . would render [FACE] powerless against the 8
ingenuity of threateners who can instill in the victim's mind as clear an 9
apprehension of impending injury by an implied menace as by a literal threat” 10
(omission in original) (quoting Turner, 720 F.3d at 422)). 11
The district court suggests that escort Garnick’s testimony concedes that 12
Thomas’s statement was equivocal. Griepp, 2018 WL 3518527, at *38. We are not 13
convinced. Garnick testified that patients “found it scary that there’s some 14
implication that having escorts there kept them safe, and that if they weren’t 15
there, that they could be at risk of harm.” App’x at 1196. She went on to say she 16
knew patients found the statements scary because they asked her how to leave if 17
there were no escorts and what risk they faced, “showing some sort of fear that 18

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harm could come to them.” App’x at 1196. This testimony does not indicate that 1
Thomas’s words were too vague to be threatening. To the contrary, Garnick’s 2
testimony, especially her statement that patients asked her how to leave without 3
escorts, makes clear that patients found the statements scary and suggestive of 4
harm. We do not agree with the district court that Garnick’s use of words such as 5
“some implication” serves as proof that the statement did not convey a concrete 6
threat of harm. Griepp, 2018 WL 3518527, at *38 (quoting testimony). “Some 7
implication” in our minds means nothing less than “an implication.” Parsing 8
Garnick’s diction in this fashion misses the forest for the trees. Garnick provides 9
concrete examples of patients’ fear in the face of Thomas’s words. Especially 10
given the context of the escorts’ function as buffers from the protestors, we think 11
a reasonable patient would perceive Thomas’s words as threatening. 12
Nor does the notion that Thomas did not typically preach in a threatening 13
tone debunk this conclusion. Thomas’s tone when preaching is not informative 14
of his tone when making this statement to a patient. Though they perhaps share 15
a goal of reducing support for Choices, the similarities between Thomas’s 16
preaching and this statement end there. When Thomas preaches publicly, he 17
encourages acceptance of God. This is an abstract concept that deals in ideology 18

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and religion, not fear. However, when Thomas stands within inches of patients 1
and speaks directly to them just before they enter Choices, he invokes physical 2
harm as a last-ditch attempt to prevent them from using Choices. That Thomas 3
might not sound threatening while generally preaching does not preclude the 4
fact that he could be threatening at other moments, especially in the final 5
moments before a patient enters Choices, after that patient has ignored his 6
preaching. Certainly, one can inspire fear with a whisper as much as a scream. 7
See Turner, 720 F.3d at 422. 8
Because the speech was specific, immediate, and unequivocal, a reasonable 9
patient would interpret defendant Thomas’s words as threatening. 10
Thomas’s Statement to Greenberg 11
We cannot say, however, that defendant Thomas’s statement to escort 12
program director Greenberg that she will “kick the bucket soon” is a true threat. 13
Griepp, 2018 WL 3518527, at *13 (citation omitted). There is no discussion in the 14
record regarding Greenberg’s reaction to this statement. It is also divorced from 15
the context that make some of Thomas’s other statements threatening. As such, 16
there is insufficient evidence to show the statement aroused fear, as required for 17
a true threat. 18

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R. George’s Statement to Escorts 1
The district court also held that defendant R. George’s statement to escorts 2
that “the people who went to work on 9/11 didn’t know what was going to 3
happen that day, you never know when you’re going to die” was not a true 4
threat. Griepp, 2018 WL 3518527, at *35 (quoting testimony). The district court 5
said this was merely part of R. George’s preaching and pointed to escort Brady’s 6
testimony that R. George spoke often about death when preaching, and after 7
making the comment at issue, R. George spoke about repenting. The district 8
court also concluded that the escorts did not find R. George threatening based on 9
a video posted to social media in which one of the recipient-escorts makes light 10
of R. George while he is within earshot. With regard to this statement, we see no 11
reason to disturb the district court’s conclusions. 12
Although we recognize that defendant R. George, like defendant Thomas, 13
referenced a tragedy in making this statement, the context of, and reaction to, R. 14
George’s statement differentiates it from Thomas’s. For instance, because R. 15
George discussed repentance directly after making the statement at issue, it is 16
much more likely that a reasonable recipient would interpret the statement as 17
simply part of his preaching. Two additional contextual factors support our 18

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conclusion. For one, R. George does not refer to abortion-specific or Choices- 1
related violence, as Thomas did with his shooting and knife comments. 2
Moreover, unlike with Thomas’s statements, there is no strong temporal 3
proximity between R. George’s statement and the referenced tragedy. 4
Furthermore, as the district court observed, the record suggests there was a lack 5
of subjective fear on the escorts’ part, given the social media video. 6
For these reasons, we affirm the court’s conclusion that R. George’s statement 7
was not a true threat. 8
Conclusion on the OAG’s Threat-of-Force Claim 9
We hold that the OAG has demonstrated a likelihood of success on the 10
merits of most of the threat-of-force claims against defendant Thomas for his 11
statement to escorts that they “could die from being shot by a bullet while on the 12
sidewalk” following a Planned Parenthood shooting; his statement to escort 13
program director Greenberg that “[s]omeone could pull a knife on you” shortly 14
after a knife fight near Choices; and his statements to patients that the escorts 15
“won’t be here when you leave.” Griepp, 2018 WL 3518527, at *13-14, *38 (quoting 16
testimony). When viewed in context, these statements were objectively and 17
subjectively threatening. 18

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We do not reach our conclusions on this set of claims lightly. As the 1
dissent points out, a protester’s First Amendment right is valuable. Important, 2
too, however, is the ability of a patient to seek reproductive health services 3
without feeling endangered. Happily, we do not have to pioneer this balancing 4
act. In concluding that certain statements constitute true threats, we rely on a 5
plethora of law and focus only on the statements that would sound objectively 6
threatening to a patient. 7
3. Force 8
Neither FACE nor NYSCAA define “force,” but this Circuit has held in the 9
context of a different federal statute that “force” broadly means “power, 10
violence, or pressure directed against a person or thing.” Dickson v. Ashcroft, 346 11
F.3d 44, 50 (2d Cir. 2003) (citation omitted). It is not limited to violent or 12
assaultive force. Id. Because this definition accords with the common meaning of 13
the term, we adopt this definition of “force” for FACE purposes. 14
The OAG argues that Exhibit 21, the only piece of evidence the district 15
court considered, shows that force was used by the protestors. The district court 16
stated, however, that while the video shows a collision between defendant 17
LaLande and an escort, it is not clear who initiated contact. Griepp, 2018 WL 18

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3518527, at *33. The district court said this was “quintessential incidental contact, 1
because neither LaLande nor the escorts appear to be trying to create a collision. 2
Rather, it appears that LaLande was trying to hand the patient a pamphlet while 3
the escorts tried to block her access to the patient.” Id. (citation omitted). As such, 4
the conduct was not undertaken with the intent to injure, intimidate, or interfere. 5
Id. We agree with the district court’s ultimate conclusion for different reasons. 6
We disagree with the notion that incidental contact cannot rise to a FACE 7
force violation. As the legislative history of FACE makes clear, the requirement 8
that defendants “intentionally injure, intimidate, or interfere” means only that 9
the defendant “intends to perform the act and is aware of the natural and 10
probable consequences.” S. Rep. No. 103-117, at 24 n.39. Under this definition of 11
intent, incidental contact is not excluded from the statute’s scope. For example, a 12
protestor who reaches out to hand a patient a pamphlet and collides with the 13
patient as a result will have intentionally interfered with, intimidated, or injured 14
the patient, so long as: (1) the protestor intended to reach out; (2) the contact was 15
the natural and probable result of reaching out; and (3) the protestor was aware 16
that the contact was the natural and probable consequence of reaching out. That 17
the interference, intimidation, or injury was a byproduct, rather than the goal, of 18

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reaching out is thus not dispositive. Rather, intent turns upon whether a result 1
was likely—that is, the natural and probable consequence—of a defendant’s 2
action and whether the defendant was aware of this. 3
This understanding of FACE’s intent requirement accords with that of 4
other Circuits as well. For instance, in Dillard, the Tenth Circuit addressed the 5
defendant’s argument that there was no evidence that she subjectively intended 6
to injure, intimidate, or interfere with the provision of abortion services when she 7
sent Dr. Means the letter that the court ultimately held was a threat of force. 795 8
F.3d at 1202-03. The defendant had repeatedly made statements that she did not 9
approve of violence or intend to threaten Dr. Means or others. Id. at 1202-03. 10
Though the Tenth Circuit acknowledged that there is a subjective intent 11
requirement, it held that the relevant showing may be satisfied from the evidence 12
of the act itself because “normally the actor is presumed to have intended the 13
natural consequences of his deeds.” Id. at 1202 (quoting Washington v. Davis, 426 14
U.S. 229, 253 (1976) (Stevens, J., concurring)). Because “the government ha[d] 15
presented evidence from which a jury could reasonably find that [the d]efendant 16
intentionally mailed Dr. Means a letter which contains a threat of violence,” there 17

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was evidence in Dillard “that [the defendant] subjectively intended the natural 1
consequence of this act—intimidating Dr. Means by a threat of force.” Id. at 1203. 2
Nonetheless, Exhibit 21 does not serve as evidence that defendant LaLande 3
intentionally used force or attempted to do so. Though LaLande had stretched 4
out her arm to hand a pamphlet to the patient, this act alone is not an intentional 5
use of force. Stretching out her arm would only constitute force if LaLande was 6
aware that the natural and probable consequence of this act is contact that 7
interferes with, intimidates, or injures the escort. But it is unclear from the record 8
who caused contact because both LaLande and the escort’s actions occurred 9
simultaneously. We cannot say that LaLande was aware that stretching out her 10
arm would result in contact under these circumstances. 11
We conclude that the district court did not abuse its discretion in deciding 12
that the OAG had not shown a likelihood of success on the merits of the force 13
claim based on Exhibit 21. 14
4. Follow and Harass 15
The City Act, unlike FACE and NYSCAA, prohibits following and 16
harassing another person within 15 feet of the premises of a reproductive health 17
care facility. N.Y.C. Admin. Code § 10-1003(a)(3). While the City Act does not 18

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define “harass,” the legislative history indicates that the term “has its ordinary 1
meaning . . . just as it does when used in the crime of ‘harassment’ in the State 2
Penal Law” and cites to Penal Law Sections 240.25 and 240.26. N.Y.C. Comm. on 3
Civil Rts. Rep. at 10 (Apr. 1, 2009). We accordingly look to these statutes. 4
First-degree harassment occurs when an individual “intentionally and 5
repeatedly harasses another person by following such person in or about a public 6
place or places or by engaging in a course of conduct or by repeatedly 7
committing acts which places such person in reasonable fear of physical injury,” 8
N.Y. Penal Law § 240.25, and second-degree harassment occurs when a person 9
“with intent to harass, annoy or alarm another . . . strikes, shoves, kicks or 10
otherwise subjects such other person to physical contact, or attempts or threatens 11
to do the same; . . . follows a person in or about a public place or places; or . . . 12
engages in a course of conduct or repeatedly commits acts which alarm or 13
seriously annoy such other person and which serve no legitimate purpose,” N.Y. 14
Penal Law § 240.26. In analyzing the terms “intent to harass, annoy or alarm 15
another” and “legitimate purpose,” as relevant here, we are guided by state court 16
precedent. 17

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The intent to harass, annoy, or alarm another may be inferred from the 1
conduct itself and the surrounding circumstances. Shephard v. Ray, 28 N.Y.S.3d 2
211, 212 (4th Dep’t 2016). For example, intent was inferred in one case “from the 3
sheer volume of defendant’s attempted unwanted communications,” especially 4
after the police and victim asked the defendant to stop. People v. Coveney, 21 5
N.Y.S.3d 523, 527 (2d Dep’t 2015). In Coveney, the victim was a principal at a 6
school where the defendant had worked as a substitute teacher. Id. at 526. The 7
defendant was fired because she was seen “screaming and yelling” in the school 8
hallway after the victim told her that she could not interview for a full-time 9
permanent position due to lack of experience. Id. The defendant sent the victim 10
more than twenty letters to “get her job back.” Id. The victim then asked the 11
defendant to stop contacting her. Id. The defendant continued to write letters and 12
began following the victim in public. Id. 13
With regard to the “no legitimate purpose” requirement, New York’s 14
highest court noted in a case involving the same requirement in a similar statute 15
that conduct may lose its characterization as having a legitimate purpose if it 16
continues after a request to cease has been made. This was the case in People v. 17
Shack. 86 N.Y.2d 529, 533, 536-37 (1995). The defendant, who suffered from 18

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mental illness, regularly spoke on the telephone with his cousin, a psychologist, 1
from June through October of 1990 because he found it helpful for his mental 2
health treatment. Id. Toward the end of October 1990, the cousin told the 3
defendant that because he stopped taking medication, “she no longer welcomed 4
his calls.” Id. at 534. The defendant nonetheless continually called his cousin (185 5
times across approximately six months) after she “repeatedly advised him that 6
she did not want to speak with him.” Id. Rejecting the defendant’s argument that 7
he called her for a legitimate purpose because he sought help for his illness, the 8
court said that “that argument addresses only those telephone calls placed before 9
[the cousin] told him to stop calling her.” Id. at 536. 10
Though Coveney and Shack involved conduct that spanned a longer 11
timeframe and seemed particularly excessive, New York courts have found even 12
less prolonged or extreme acts to constitute second-degree harassment. For 13
instance, in People v. Richards, the court held that the defendant, who was 14
attempting to sell a balloon, engaged in a course of conduct which would 15
seriously annoy another person by “repeatedly blocking the path of a pedestrian, 16
who was attempting to travel unmolested down the street with her two small 17
children, and by refusing to accept her declination to purchase his balloon.” 869 18

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N.Y.S.2d 731, 739 (Crim. Ct. 2008). The court explained that “although [the 1
defendant’s] initial offer to engage in a commercial transaction may have served 2
a legitimate purpose, his continuing to aggressively hawk his wares to an 3
unwilling customer, eventually demanding that she ‘Buy it for your kids!’ did 4
not.” Id. As to intent, the court said that the defendant’s intent could be inferred 5
from the act itself or from the conduct and surrounding circumstances. Id. 6
As the district court recognized, the OAG provided undisputed evidence 7
that Defendants have a deliberate policy and practice of following patients, 8
companions, and escorts at extremely close distances and continuing to speak 9
with these individuals after express and implied requests to stop. Defendant 10
Griepp testified that after a patient directly tells him she does not want to hear 11
what he has to say, he does not necessarily stop; instead, he assesses whether he 12
could change topics and may press on. Defendant R. George also testified that he 13
would keep speaking with patients who remain silent as they approach the clinic 14
entrance and continues to engage patients who refuse literature. Though he will 15
usually stop if a patient asks to be left alone, he sometimes makes a closing 16
remark. Defendant Musco similarly makes a last appeal and offer of literature 17
after being repudiated. There is also evidence that Church at the Rock protestors 18

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often “tag team” patients: after one protestor stops speaking with a patient 1
following a rebuff, another will subsequently try to engage the patient. Griepp, 2
2018 WL 3518527, at *46 (citation omitted). The second protestor sometimes, but 3
not always, knows that the patient had previously rejected another protestor’s 4
attempts. The OAG also provided specific exhibits demonstrating alleged follow- 5
and-harass violations. 6
The district court nonetheless held that neither Defendants’ policy and 7
practice of making multiple attempts to engage individuals, nor the specific 8
exhibits, amounted to violations of the City Act’s follow-and-harass prohibition. 9
We disagree. We first discuss Defendants’ practice and then the specific exhibits. 10
Defendants’ Policy and Practice of Making Multiple Attempts to Engage 11
Individuals Following a Request to be Left Alone 12
Taking the conduct and circumstances into account, it can be inferred that 13
Defendants acted with the intent to harass, annoy, or alarm when they followed 14
a patient, companion, or provider and made multiple attempts to engage that 15
individual. The reproductive health context is a particularly delicate one. The 16
decisions and beliefs that accompany visiting a reproductive health facility 17
providing abortions like Choices are deeply personal. The process is oftentimes a 18

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formidable or poignant one. Against this backdrop, protestors ignoring patient 1
requests to be left alone and following patients at close distances while 2
continually seeking to press their own ideals upon them may be intolerable. See 3
S. Rep. No. 103-117, at 14-15 (noting the increased stress and anxiety patients feel 4
because of protestor misconduct outside clinics). We accordingly hold that doing 5
so sufficiently establishes an inference of intent to harass, annoy, or alarm. 6
Indeed, less intrusive conduct has been considered second-degree harassment. 7
See Richards, 869 N.Y.S.2d at 807. 8
It is inconsequential that protestors may have only sought to engage an 9
individual for a short amount of time or following merely one rebuff. In the 10
sensitive atmosphere of reproductive health care clinics, ignoring implicit or 11
explicit requests to be left alone, even for a short time after a single rebuff, is 12
egregious. Duration and quantity of attempts may cut against an inference of 13
intent in less controversial situations, but we are not persuaded that they do so 14
here. 15
Nor can we say Defendants had a legitimate purpose. That sidewalk 16
counseling constitutes a legitimate First Amendment activity is irrelevant when 17
the conduct at issue persists following a request to cease. See Shack, 86 N.Y.2d at 18

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536; Richards, 869 N.Y.S.2d at 807. Defendants may have acted with a legitimate 1
purpose in their first attempt to engage a patient, but once a patient makes an 2
explicit or implicit request to be left alone, that legitimate purpose is vitiated. 3
Exhibit 135 4
In discussing the district court’s treatment of the exhibits, we begin with 5
Exhibit 135. The district court describes Exhibit 135 as “captur[ing] a woman’s 6
violent reaction to Joseph’s overtures.” Griepp, 2018 WL 3518527, at *47 7
Defendant Joseph had known that defendant Musco had already approached the 8
woman and been rebuffed, but Joseph nonetheless made a second attempt to 9
engage the woman. Joseph testified that she had asked the woman if she was all 10
right or if she needed help. The district court did not infer the requisite intent 11
because there was “insufficient evidence about what Joseph said to the woman 12
and in what tone of voice to allow an inference that Joseph approached the 13
woman with the intent to harass, annoy, or alarm her, rather than with an intent 14
to engage the woman in conversation and persuade her not to seek an abortion 15
or otherwise support Choices.” Id. 16
We think there is sufficient evidence in Exhibit 135 by which to infer 17
intent. Defendant Joseph sought to engage the woman despite being aware she 18

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had already rebuffed another protestor. Though Joseph may only have asked her 1
if she needed help, Joseph testified that “Ms. Pat had spoken to her prior, but 2
then I figured okay, let me try to talk to her, maybe she’ll be a little more 3
receptive towards me.” App’x at 1807. Therefore, Joseph herself acknowledged 4
that she approached the patient in an attempt to continue dissuading her from 5
entering the clinic. For the reasons described above, Joseph’s subsequent attempt 6
to engage the patient despite knowing that the patient had rejected another 7
protestor’s attempts is conduct from which we can infer intent. Nor does 8
Joseph’s purpose of seeking to persuade the woman not to support Choices 9
preclude a finding that she acted with an intent to harass, annoy, or alarm. See 10
Coveney, 21 N.Y.S.3d at 525 (discussing a defendant who acted with intent to 11
harass, annoy, or alarm though her aim was to be rehired); Shack, 86 N.Y.2d at 12
533 (noting that the defendant acted with intent to harass, annoy, or alarm by 13
calling the victim even though his goal was to seek mental health care); Richards, 14
869 N.Y.S.2d at 807 (concluding that the defendant acted with the requisite intent 15
despite seeking to engage in a commercial transaction). 16

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Exhibit 99 1
Exhibit 99 “shows [defendant] Thomas standing about six feet from an 2
escort, pleading with her to look at a rubber fetus doll and attempting to explain 3
to her why abortion is not acceptable in his view.” Griepp, 2018 WL 3518527, at 4
*16. Though the district court acknowledged that “Thomas was aware that the 5
escort to whom he was talking exhibited body language suggesting that she was 6
not interested in what he had to say,” it concluded “the video does not show 7
Thomas talking to the escort for so long, in such a tone, or in such a manner that 8
it can be inferred that he did so with the intent to harass, annoy, or alarm.” Id. at 9
*47. 10
This conclusion is at odds with the video itself. Our review of the video 11
shows that there are two escorts, one male and one female, and defendant 12
Thomas is within one or two feet of the male escort. Ex. 99. Like the female 13
escort, the male escort makes clear indications to Thomas that he is not interested 14
in engaging with Thomas by continually turning away from Thomas. Id. Thomas 15
nonetheless follows the escorts at a close distance while dangling the fetus doll. 16
Id. Regardless of his tone or ultimate purpose, it is clear that Thomas is pestering 17
the two escorts by continuing to pursue them in this manner. The cramped area 18

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in which this all occurs, combined with Thomas’s proximity to the escorts and 1
the persistent manner in which he waves the fetus, gives rise to an inference of 2
intent to harass, annoy, or alarm. 3
Exhibit 333 4
According to the district court, Exhibit 333 shows defendant “Thomas 5
[taking] a few steps away from the patient in response to her requests that he 6
‘[b]ack up.’” Griepp, 2018 WL 3518527, at *37. The district court thus concluded 7
that the interaction does not suggest Thomas had an intent to harass, annoy, or 8
alarm. Id. 9
In our view, the factual finding that defendant Thomas backed away from 10
the patient is clearly erroneous. Exhibit 333 depicts Thomas moving only to the 11
side while the patient continues saying “back up” and holding out her hand to 12
distance Thomas. Ex. 333. This speech and body language demonstrates that the 13
patient does not want to converse with Thomas. Nevertheless, Thomas continues 14
to speak to the patient. As such, for the reasons we have described above, 15
Thomas’s continued attempts to engage the patient is sufficient to give rise to an 16
inference of impermissible intent. 17

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Exhibits 3, 17, 338, 351, and 354 1
With Exhibits 3, 17, 338, and 351, we agree with the district court that 2
because no audio of the interactions is captured, and because there are no hand 3
gestures or body language exhibiting a desire to be left alone, there is insufficient 4
evidence from which to infer intent. 5
“Exhibit 354 shows [defendant] Thomas attempting [to] persuade a 6
patient’s husband not to use the Clinic. At the start of the video, the husband was 7
stationary, explaining to Thomas that his wife was at the Clinic because she had 8
a miscarriage. Thomas attempted to persuade the man not to use the Clinic at all, 9
because it perform[s] abortions.” Griepp, 2018 WL 3518527, at *16 (citations 10
omitted). In Exhibit 354, the man with whom Thomas engages “never asked to be 11
left alone; he only said ‘Okay,’ in an exasperated tone. Even after saying that, the 12
companion stopped to speak to Thomas for a second time.” Id. at *48 (citations 13
omitted). The district court concluded that nothing about the interaction suggests 14
an intent to harass, annoy, or alarm. Id. 15
We agree with the district court. Although unambiguous body language 16
may suffice to indicate that an individual no longer wishes to engage with a 17
protestor, we are not convinced that the companion’s actions here were so 18

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unmistakable. We recognize that by using an exasperated tone, the companion 1
implicitly suggested he would like defendant Thomas to leave him alone. But the 2
companion’s conduct in stopping to speak to Thomas a second time creates 3
ambiguity as to whether the companion was rebuffing Thomas. We therefore do 4
not disturb the district court’s decision that intent cannot be inferred from 5
Exhibit 354. 6
Conclusion on the OAG’s Follow-and-Harass Claim 7
With regard to the City Act’s follow-and-harass provision, we hold that a 8
defendant’s intent to harass, annoy or alarm may be inferred from the conduct of 9
following a patient or companion at a reproductive health care facility and 10
repeatedly attempting to engage that individual, even for a just a short time, 11
when the individual explicitly or impliedly requested to be left alone. We 12
accordingly hold that the OAG has demonstrated a likelihood of success on the 13
merits of its follow-and-harass claims. We also note that the dissent, having 14
concluded that the OAG may not sue under the City Act, does not counter this 15
interpretation of the statute’s follow-and-harass provision or its application. 16

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5. Conclusion on the OAG’s Likelihood of Succeeding on the 1
Merits 2
“[FACE] is designed to protect health care providers and patients from 3
violent attacks, blockades, threats of force, and related conduct intended to 4
interfere with the exercise of the constitutional right to terminate pregnancy.” S. 5
Rep. No. 103-117, at 22. The statute is broad in order to shield this right. There is 6
no statutory carveout for de minimis conduct. Even if such conduct is innocuous 7
in other situations, given the health risks women needing reproductive care face 8
because of the increased stress, anxiety, and agitation from protestor misconduct, 9
the negative effects of de minimis conduct are amplified when dealing with 10
reproductive health. See id. at 14-16. Therefore, it is not for us to rewrite and 11
weaken FACE through narrow applications. 12
Thus, consonant with Congress’s intent and drafting, and for the reasons 13
set out above, we conclude that the OAG has sufficiently established it is likely to 14
succeed on its FACE, NYSCAA, and City Act claims with respect to the physical 15
obstruction, threat-of-force, and follow-and-harass allegations. 16

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B. Irreparable Harm 1
Although the district court did conclude or assume that the OAG would 2
likely succeed on the merits of three alleged violations,13 the district court 3
nonetheless denied injunctive relief because it determined that irreparable injury 4
had not been shown. 5
Governmental plaintiffs may show irreparable harm by establishing “a 6
reasonable likelihood that the wrong will be repeated.” Commodity Futures 7
Trading Comm’n v. British Am. Commodity Options Corp., 560 F.2d 135, 141 (2d Cir. 8
1977). A likelihood of future violations may be inferred from past unlawful 9
conduct, Sec. & Exch. Comm’n v. Manor Nursing Ctrs., Inc., 458 F.2d 1082, 1100 (2d 10
Cir. 1978), particularly when the defendant “maintain[s] that its activities were 11
legitimate” and “persisted in [the violation] right up to the day of the hearing in 12
the district court,” British Am. Commodity Options Corp., 560 F.2d at 142. Similarly, 13
failing to attempt to cease or undo the effects of unlawful activity until the 14
13 The district court assumed that defendant Musco’s misleading of a patient by
incorrectly telling her the clinic was closed and defendant Kaminsky’s doing the
same in a separate instance would violate the City Act. The district court held
that defendant B. George’s slow walk delay tactic violated FACE, NYSCAA, and
the City Act.

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institution of an investigation supports an expectation of future violations, as 1
does willful, blatant, or outrageous violations. Manor Nursing Ctrs., Inc., 458 F.2d 2
at 1100. Thus, the “cessation of illegal activity does not ipso facto justify the 3
denial of an injunction.” S.E.C. v. Mgmt. Dynamics, Inc., 515 F.2d 801, 807 (2d Cir. 4
1975). Instead, courts should look to the “totality of circumstances[] and factors 5
suggesting that the infraction might not have been an isolated occurrence.” Id. 6
The OAG argues that the district court erred in concluding that the 7
violations at issue would not occur again. The district court rested its decision on 8
B. George’s supplemental declaration “swearing under oath that he engaged in 9
the slow walk on only a handful of occasions, that he stopped doing so when 10
[defendant] Griepp learned of the practice and told him to discontinue it, and 11
that he ’will not engage in the behavior again.’” Griepp, 2018 WL 3518527, at *42. 12
With defendants Musco and Kaminsky, the district court said they each had 13
misled patients only once despite years of protest and that they “hav[e] been 14
warned about the impropriety of such statements.” Id. at *48. 15
These bases are insufficient to find no likelihood of future violations. 16
Turning first to defendant B. George’s slow walk, the OAG in our view satisfied 17
its burden of showing a reasonable likelihood of reoccurrence. B. George’s past 18

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conduct gives rise to an inference of continued violations, Manor Nursing Ctrs., 1
458 F.2d at 1100, an inference that is properly drawn in light of the following 2
facts. First, B. George deliberately engaged in the delay tactic multiple times, and 3
his slow walk constituted a blatant violation of the statutes.14 The evidence at 4
trial established that B. George purposefully “does the slow walk in front of the 5
clients so Sharon and he can talk to them.” App’x at 1860. Indeed, in response to 6
the OAG’s question of whether the slow walk was “a tactic that [B. George] uses 7
to slow down patients who are entering the clinic,” defendant Musco agreed and 8
stated that “[i]t gives us a little more time to plead for the baby's life.” App’x at 9
1860. Defendants also continue to maintain its legitimacy in their counter-appeal. 10
These facts strongly support an inference of future violations. British Am. 11
Commodity Options Corp., 560 F.2d at 142; Manor Nursing Ctrs., 458 F.2d at 1100- 12
01. 13
Nor is defendant B. George’s declaration enough to overcome this 14
inference. As an initial point, B. George’s affidavit is contradicted by the 15
14 We affirm the district court’s conclusion that the slow walk violates FACE,
NYSCAA, and the City Act, set forth in our analysis more fully in section III.D,
infra.

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testimony; though B. George stated in his affidavit that he only engaged in the 1
slow walk in “early 2017,” the record, based on defendant Musco’s notes, 2
indicates that he did so as late as June 2017. App’x at 2187, 1860. This 3
discrepancy casts doubt on the affidavit’s credibility. See Anderson, 470 U.S. at 4
574-75. Moreover, we place heavy emphasis on the fact that this declaration was 5
submitted after the preliminary injunction hearing and oral arguments had taken 6
place. We cannot agree that such an eleventh-hour promise from an interested 7
party is sufficient to refute an inference of future violations. See Manor Nursing 8
Ctrs., 458 F.2d at 1100; cf. S.E.C. v. Bilzerian, 29 F.3d 689, 695 (D.C. Cir. 1994) (“If a 9
defendant could survive summary judgment by simply submitting a self-serving 10
statement about his desire to conform to the law in the future, it would establish . 11
. . a ritualistic dodge around a permanent injunction on a motion for summary 12
judgment.” (internal quotation marks omitted)). Concluding that the OAG has 13
not shown irreparable harm solely based on B. George’s declaration was an 14
abuse of discretion. 15
The grounds for finding that defendants Musco and Kaminsky would not 16
engage in future violations are even more tenuous. Though Musco and 17
Kaminsky misled patients only one time each, they did so deliberately, and there 18

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is no evidence that they disavowed doing so again until this litigation. These 1
facts on the whole support an inference of continued violations. See Manor 2
Nursing Ctrs., 458 F.2d at 1100. The district court relied also on its belief that these 3
defendants will not mislead patients again having been warned by the court. We 4
fail to find any legal support for the proposition that reliance on such a belief can 5
defeat a preliminary injunction. The district court therefore also erred in 6
concluding that Musco and Kaminsky’s violations would not reoccur on these 7
grounds. 8
We conclude that, for those acts that the district court determined did 9
constitute violations, the OAG has shown irreparable harm. We hold that the 10
court’s reliance on defendants B. George, Musco, and Kaminsky’s self-serving 11
statements, whether sworn or unsworn, that violations will not reoccur is an 12
insufficient basis upon which to deny injunctive relief. Accordingly, we vacate 13
the denial of the preliminary injunction and remand for further proceedings 14
consistent with this opinion. 15
III. Defendants—Cross-Appellants’ Claims 16
Defendants raise a number of issues on cross-appeal. They argue that the 17
OAG did not have parens patriae standing to enforce the City Act and that FACE 18

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and its state and local analogs violate the First Amendment. Defendants also 1
reassert their argument that the City Act’s follow-and-harass provision is 2
unconstitutionally vague, which was raised in their motion to dismiss but was 3
not reached by the district court. Defendants include a vagueness challenge to 4
the City Act’s clinic interference provision, raised for the first time in their cross- 5
appeal, as well. Finally, Defendants claim that the district court erred in 6
concluding that B. George violated FACE and its analogs with his slow walk 7
tactic. 8
A. Jurisdiction 9
Whether we have jurisdiction to hear the cross-appeal is not 10
straightforward. Defendants’ claims regarding the statutes’ constitutionality and 11
the OAG’s standing to enforce the City Act were raised in their motions to 12
dismiss below. While the district court never affirmatively denied the motions, it 13
either did not decide or rejected these claims in its memorandum and order 14
denying the OAG’s motion for a preliminary injunction. Accordingly, there is no 15
denial of the motions to dismiss from which Defendants might appeal. 16
Defendants instead cross-appeal from the denial of the preliminary injunction 17

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despite prevailing below. This raises both questions of subject-matter jurisdiction 1
and Defendants’ standing to cross-appeal. 2
We first take up subject-matter jurisdiction. We may address these claims 3
by exercising our pendent appellate jurisdiction. Pendent appellate jurisdiction 4
provides “jurisdiction over related rulings that are otherwise unappealable as 5
long as the related rulings are ‘inextricably intertwined’ with an issue over which 6
the court properly has appellate jurisdiction.” Blue Ridge Invs., L.L.C. v. Republic of 7
Argentina, 735 F.3d 72, 81 (2d Cir. 2013) (some internal quotation marks omitted). 8
We conclude that the issues of whether FACE and its analogs are constitutional 9
and whether the OAG has standing to enforce the City Act are “inextricably 10
bound up with the preliminary injunction.” See Amador v. Andrews, 655 F.3d 89, 11
95 (2d Cir. 2011) (citation omitted); see also Lamar Advert. of Penn, LLC v. Town of 12
Orchard Park, 356 F.3d 365, 372 (2d Cir. 2004) (concluding that the issue of 13
standing is “inextricably intertwined with the plaintiff’s motion for preliminary 14
injunction”). 15
Although the district court did not decide whether the City Act’s follow- 16
and-harass and clinic-interference provisions are void for vagueness, we can and 17
do elect to address this issue on appeal. “While generally we decline considering 18

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arguments not addressed by the district court, this is a prudential rule we apply 1
at our discretion. In determining whether to consider such issues, we rely on a 2
number of factors, including the interests of judicial economy and whether the 3
unaddressed issues present pure questions of law.” Bacolitsas v. 86th & 3rd 4
Owner, LLC, 702 F.3d 673, 681 (2d Cir. 2012) (citations omitted). Because 5
remanding would be inefficient under these circumstances, and because the 6
question of vagueness is a purely legal one, we opt to address the vagueness 7
challenges on appeal. 8
We also note that Defendants retain standing to raise these claims and the 9
argument that B. George did not violate FACE with his slow walk even though 10
the district court entered an order favorable to Defendants. For a party to have 11
standing on appeal, the party must generally be aggrieved by the judicial action 12
from which it appeals. Allstate Ins. Co. v. A.A. McNamara & Sons, Inc., 1 F.3d 133, 13
137 (2d Cir. 1993). However, one exception is when a “reversal revives the action 14
against the appellees and renders [the appellees’] cross-appeal viable.” Parker v. 15
Columbia Pictures Indus., 204 F.3d 326, 341 n.7 (2d Cir. 2000). Two other 16
considerations are relevant: whether “the record is sufficient for an appellate 17
decision and whether a decision at the time would conserve judicial resources by 18

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materially advancing the proceeding.” See Tr. for Certificate Holders of Merrill 1
Lynch Mort. Inv’rs, Inc. Mort. Pass-Through Certificates, Series 1999-C1, ex rel. Orix 2
Capital Mkts., LLC v. Love Funding Corp., 496 F.3d 171, 175 (2d Cir. 2007). 3
We conclude that Defendants have standing to pursue the cross-appeal 4
based on these considerations. Our decision to vacate and remand the denial of 5
the preliminary injunction “revives the action against appellees.” Parker, 204 F.3d 6
at 341 n.7. Additionally, these issues have been fully briefed by the parties, both 7
on appeal and before the district court, and the district court has analyzed all but 8
the vagueness claims. Therefore, a sufficient record exists on which to decide the 9
issues, and judicial economy supports doing so. Accordingly, we turn to the 10
merits of Defendants’ claims. 11
B. Constitutional Challenges 12
Defendants raise two distinct constitutional challenges to the statutes. 13
They first argue that FACE and its analogs violate the First Amendment. They 14
next argue that the City Act’s follow-and-harass and clinic-interference 15
provisions are void for vagueness. Neither challenge is meritorious. 16

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1. First Amendment Challenge 1
Defendants argue that FACE, NYSCAA, and the City Act are facially 2
unconstitutional because they are aimed at speech about reproductive health 3
services. But our precedent directly rejects Defendants’ contention. In United 4
States v. Weslin, 156 F.3d 292, 296-98 (2d Cir. 1998), our Circuit held that FACE 5
was facially neutral and constitutional. We first noted that FACE largely 6
regulates obstructive conduct and only proscribes speech insofar as it prohibits 7
true threats, which fall outside of the First Amendment’s ambit. Id. at 297. We 8
went on to explain that regardless, the statute is content-neutral because “FACE 9
applies whenever access to reproductive health services is obstructed. It contains 10
no requirement whatsoever that the offenders intend to communicate a 11
particular message—or any message at all—by their obstructive actions.” Id. To 12
exemplify this, we cited to the Eighth Circuit’s observation that “FACE would 13
prohibit striking employees from obstructing access to a clinic in order to stop 14
women from getting abortions, even if the workers were carrying signs that said, 15
‘We are underpaid!’ rather than ‘Abortion is wrong!’” Id. (some internal 16
quotation marks omitted). 17

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Defendants attempt to overcome Weslin by arguing that the Supreme 1
Court’s subsequent decision in Reed v. Town of Gilbert calls Weslin into question. 2
576 U.S. 155, 159 (2015). We disagree. In Reed, the Supreme Court held that a 3
municipal code’s regulation of the display of outdoor signs was a content-based 4
regulation because the restrictions “depend entirely on the communicative 5
content of the sign.” Id. at 164. But in Weslin, we explicitly held that application 6
of FACE does not rely on any particular message or communicative content. 156 7
F.3d at 297. Speech and conduct unrelated to reproductive rights can still give 8
rise to a FACE violation. Id. Accordingly, Reed is inapposite. 9
We also note that the dissent agrees that FACE and NYSCAA are 10
constitutional. Because it does not reach the City Act claims, the dissent does not 11
argue against our affirmance of the district court’s conclusion that all three 12
statutes do not violate the First Amendment. See Griepp, 2018 WL 3518527, at *29 13
n.18. 14
2. Vagueness Challenges 15
Defendants also argue that the follow-and-harass and clinic-interference 16
provisions of the City Act are void for vagueness. The “void for vagueness” 17
doctrine requires that laws be sufficiently clear to give a person of ordinary 18

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intelligence a reasonable opportunity to know what is prohibited; laws may also 1
be unconstitutionally vague if they allow for arbitrary and discriminatory 2
enforcement. VIP of Berlin, LLC v. Berlin, 593 F.3d 179, 186 (2d Cir. 2010). In 3
assessing whether a statute is vague, we may properly rely on a statute’s 4
legislative history if necessary. See Commack Self-Service Kosher Meats, Inc. v. 5
Hooker, 680 F.3d 194, 213 (2d Cir. 2012). 6
Defendants challenge the follow-and-harass provision of the City Act on 7
vagueness grounds because “harass” is not defined in the City Act. But as we 8
explained when discussing the Attorney General’s likelihood of success on the 9
merits of its follow-and-harass claims, the legislative history makes clear that 10
“harass” incorporates the definition of harassment in the criminal code. See 11
N.Y.C. Comm. on Civil Rts. Rep. at 10 (Apr. 1, 2009). This definition is further 12
explored in multiple New York state judicial opinions, as discussed above. In 13
light of this, we cannot say that a person of ordinary intelligence would not 14
understand what is prohibited or that arbitrary and discriminatory enforcement 15

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would result. Therefore, we reject Defendants’ argument that the City Act’s 1
follow-and-harass provision is void for vagueness.15 2
15 Defendants argue that New York’s criminal harassment statutes are themselves
constitutionally defective, so they cannot be relied upon to supply a definition
for “harass” in the City Act. Defendants claim the criminal harassment statutes
are content-based statutes because they “shall not apply to activities regulated by
the national labor relations act, as amended, the railway labor act, as amended,
or the federal employment labor management act, as amended.” N.Y. Penal Law
§§ 240.25, 240.26. We do not read the quoted language to serve as subject-matter
carveouts such that the statutes are content based; rather, the quoted language
merely acknowledges federal preemption.
Legislatures are prohibited “from discriminating in the regulation of
expression on the basis of the content of that expression,” Barr v. Am. Ass’n of Pol.
Consultants, Inc., 140 S. Ct. 2335, 2346 (2020) (internal quotation marks omitted),
but New York does not do that here. New York cannot, as a matter of law,
regulate activities that are already regulated by the above-referenced federal
laws. See, e.g., Air Transp. Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 220-21 (2d Cir.
2008) (noting that state law is preempted when “Congress intend[s] the Federal
Government to occupy a field exclusively, or when state law actually conflicts
with federal law” (brackets and internal quotation marks omitted)); see also Pruter
v. Local 210’s Pension Tr. Fund, 858 F.3d 753, 759 (2d Cir. 2017) (“The [Railway
Labor Act] preempts potentially conflicting state causes of action even if the state
law does not actually conflict with the federal law and regardless of the nature of
the state law claim . . . .”); Healthcare Ass’n of N.Y. State, Inc. v. Pataki, 471 F.3d 87,
95 (2d Cir. 2006) (“States may not regulate activity that the [National Labor
Relations Act] protects, prohibits, or arguably protects or prohibits.” (quoting
Wis. Dep’t of Indus., Labor & Human Relations v. Gould, Inc., 475 U.S. 282, 286
(1986))). Thus, the above-quoted language serves simply as a recognition that
activities regulated by the federal government are protected from the state’s
reach. It is not, as Defendants argue, an attempt to “single[] out specific subject
matter for differential treatment.” Am. Ass’n of Pol. Consultants, 140 S. Ct. at 2346
(quoting Reed, 576 U.S. at 169).

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Similarly, “interfere” is not defined in the City Act, so Defendants argue 1
that the clinic-interference provision is void for vagueness. While “interfere” is 2
not defined in the legislative history either, we do not believe the clinic- 3
interference provision is unconstitutionally vague. Based on the plain meaning of 4
that term, a person of ordinary intelligence would understand what it means to 5
“interfere.” In addition, the provision prohibits “knowingly” interfering, and this 6
scienter requirement further undermines vagueness concerns. See Einaugler v. 7
Supreme Court of State of N.Y., 109 F.3d 836, 842 (2d Cir. 1997). For these reasons, 8
we reject Defendants’ argument that the clinic-interference provision is void for 9
vagueness.16 10
C. Standing 11
Defendants next argue that the OAG lacks parens patriae standing to 12
enforce the City Act. “The doctrine of parens patriae allows states to bring suit on 13
behalf of their citizens in certain circumstances by asserting a quasi-sovereign 14
16 The dissent, having concluded that it does not need to address the City Act
claims, does not counter our holding that neither the follow-and-harass provision
nor clinic-interference provision of the City Act are unconstitutionally vague.

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interest.” Connecticut v. Physicians Health Servs. of Conn., Inc., 287 F.3d 110, 119 (2d 1
Cir. 2002) (“Physicians II”). 2
Here, the City Act does not explicitly provide for parens patriae standing. 3
However, this is not fatal to the OAG’s standing. Typically, when determining 4
whether a state has parens patriae standing to enforce a statute, one question we 5
ask is whether the statute in question excludes the possibility for parens patriae 6
standing. Id. at 120. “States have frequently been allowed to sue in parens patriae 7
to enforce federal statutes that do not specifically provide standing for state 8
attorney generals.” Id. at 121 (citation and alterations omitted). This is especially 9
true in statutory schemes that have broad enforcement provisions, using words 10
like “any person” or “the party so injured or deprived” to describe the category 11
of entities eligible to sue. Connecticut v. Physicians Health Servs. of Conn., 103 F. 12
Supp. 2d 495, 509-10 (D. Conn. 2000) (“Physicians I”) (emphasis omitted) 13
(collecting examples). In Physicians II, although we concluded that Section 14
1123(a)(3) of the Employee Retirement Income Security Act (“ERISA”) was 15
specifically structured to “strictly limit[] the universe of plaintiffs who may bring 16
certain civil actions,” we acknowledged that was in large part due to language 17
indicating that “a participant, beneficiary, or fiduciary” may bring civil suit. 18

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Physicians II, 287 F.3d at 120-21 (quoting 29 U.S.C. § 1132(a)(3)). In that holding, 1
we carefully noted that we did “not of course intend to imply that states may 2
only sue in their parens patriae capacity when a statute specifically provides for 3
suits by states.” Id. at 121. In other words, where broadly inclusive phrases like 4
“any person” are used, parens patriae power is not foreclosed. See Physicians I, 5
103 F. Supp. 2d at 509-10 (collecting examples). Similarly, in Clearing House 6
Association, L.L.C. v. Cuomo, we declined to hold that the OAG lacked parens 7
patriae standing under the Fair Housing Act’s (“FHA”) “broad remedial 8
provision that allows any ‘aggrieved person’ to bring an action,” 510 F.3d 105, 9
125 (2d Cir. 2007), aff’d in part and rev’d in part on other grounds, 557 U.S. 519 10
(2009), even though the FHA defines “[p]erson” in a similar fashion as the City 11
Act, 42 U.S.C. § 3206(d); see also, e.g., Support Ministries for Persons with AIDS, Inc. 12
v. Village of Waterford, 799 F. Supp. 272, 275-79 (N.D.N.Y. 1992) (New York had 13
standing to sue in parens patriae under the FHA). Nowhere in that definition is 14
an explicit reference to governmental entities, and indeed, the FHA’s definition 15
even lacks the catch-all phrase “any other entity” contained in the City Act, 16
discussed below. See 42 U.S.C. § 3602(d); see also N.Y.C. Admin. Code § 10-1002. 17

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Yet, we suggested (albeit without deciding) that the OAG could bring a parens 1
patriae action under the FHA. See Clearing House, 510 F.3d at 125-26. 2
Here, the City Act’s enforcement provision is broad enough to allow for 3
parens patriae standing even absent a specific statutory authorization. The City 4
Act’s enforcement provision states that “any person whose ability to access a 5
reproductive health care facility has been interfered with, and any owner or 6
operator of a reproductive health care facility or owner of a building in which 7
such a facility is located, may bring a civil action” for violation of the Act. N.Y.C. 8
Admin. Code § 10-1004 (emphases added). This broad civil enforcement 9
provision is similar in scope to others that allow for parens patriae standing. In 10
People by Abrams v. 11 Cornwell Co., we held that New York had standing to sue 11
as parens patriae for violations of 42 U.S.C. § 1985, which allows for “the party so 12
injured or deprived” to recover damages. 695 F.2d 34, 38, 40 (2d Cir. 1982), 13
vacated in part on other grounds, 718 F.2d 22 (2d Cir. 1983). The City Act’s 14
enforcement provision similarly allows enforcement by anyone injured by the 15
prohibited conduct, whether the injured is someone whose access was interfered 16
with, or the owner or operator of a harmed clinic, or the owner of a building 17
housing a clinic that has suffered. 18

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Moreover, the City Act defines “person” very broadly, including “an 1
individual, corporation, not-for-profit organization, partnership, association, 2
group or any other entity.” N.Y.C. Admin. Code § 10-1002 (emphasis added). 3
Although “person” does not explicitly list a state government, it includes 4
virtually any entity within its scope. The word “person”, in turn, is used in the 5
operative Section 10-1004 discussed above. This residual-clause approach to 6
defining “person” evinces an intent to be inclusive, rather than exclusive, when 7
providing civil standing. 8
The City Act does not include any of the restrictive terminology used in 9
other statutes to restrict enforcement standing. Compare Physicians II, 287 F.3d at 10
120-21, with N.Y.C. Admin. Code § 10-1004. By way of example, Section 1985 11
does not define the term “party” used therein, and it is not altogether clear that 12
state governments fit within the term based on the surrounding language. 42 13
U.S.C. § 1985(3). Nonetheless, states may sue as parens patriae for violations of it. 14
See 11 Cornwell Co., 695 F.3d at 40. The dissent takes issue with the application of 15
this analogous analysis. True, the statutory text and context are not identical, 16
since we have not previously evaluated this question with regard to the City Act. 17
However, it is not as if a completely different set of statutory interpretation rules 18

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apply to municipal codes that use nearly identical language as some federal 1
statutes. We have used the interpretation of federal statutes “with similar 2
wording” to inform our understanding of state and municipal statutes. Loeffler v. 3
Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009) (citation omitted) 4
(referring to New York City Human Rights Law). In any event, the underlying 5
reasoning for our interpretation and application of parens patriae standing exists 6
here: where broad civil enforcement provisions like this one exist, with no 7
apparent limitation on the category of party, parens patriae standing is not 8
foreclosed, given, of course, that the other requirements are satisfied, which we 9
discuss in detail below. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 10
458 U.S. 592, 607-08 (1982). Accordingly, the lack of a specific reference to state 11
government standing within the City Act is not fatal to parens patriae standing. 12
Having established that the City Act permits parens patriae standing, we 13
next turn to the question of whether the OAG has shown that the three 14
requirements for such standing have been met in the present case. These three 15
requirements are: (1) injury to a sufficiently substantial segment of the state’s 16
population; (2) a quasi-sovereign interest; and (3) an inability for individual 17

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plaintiffs to obtain complete relief. See 11 Cornwell Co., 695 F.2d at 38-40. The 1
OAG has satisfied all three. 2
The OAG has adequately alleged that Defendants’ conduct harms a 3
substantial segment of the population. First, the OAG alleged that since Choices’ 4
opening, Defendants have engaged in intimidating and harassing conduct 5
directed towards multiple groups of people, including Choices staff and 6
volunteers, prospective and current patients, and patients’ companions. Second, 7
because Choices provides a range of reproductive health care services, the 8
patients affected are not just those seeking abortions. Third, Choices serves all 9
women in the New York City area. Thus, the scope of persons injured is broader 10
than it may seem. We also note that New York State enacted its own version of 11
FACE, and “[o]ne helpful indication in determining whether an alleged injury to 12
the health and welfare of its citizens suffices to give the State standing to sue as 13
parens patriae is whether the injury is one that the State, if it could, would likely 14
attempt to address through its sovereign lawmaking powers.” Alfred L. Snapp & 15
Son, 458 U.S. at 607. Therefore, the OAG has satisfied the first requirement. 16
The OAG has also shown that the State has a quasi-sovereign interest 17
“apart from the interests of particular private parties.” Id. Courts routinely 18

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acknowledge that “a State has a quasi-sovereign interest in the health and well- 1
being—both physical and economic—of its residents in general.” Id. Because 2
protest activity outside healthcare facilities “threatens not only the psychological, 3
but also the physical, well-being of the patient[s]” seeking treatment, a state 4
would naturally have a quasi-sovereign interest in preventing any interference 5
with patients’ access to reproductive health care facilities resulting from protests. 6
Madsen v. Women’s Health Ctr., 512 U.S. 753, 768 (1994). Accordingly, this second 7
requirement is also satisfied in the present case. 8
Finally, the OAG has also satisfied the requirement that individual 9
plaintiffs be unable to obtain complete relief. We have held that when it is 10
“difficult and costly” to litigate claims, and when the interests of individuals “are 11
not necessarily coextensive with those of the public,” private parties may be 12
unable to obtain complete relief. Commonwealth of Puerto Rico ex rel. Quiros v. 13
Bramkamp, 654 F.2d 212, 217 (2d Cir. 1987). Both characteristics are presented 14
here. “There is no assurance that the [individuals affected] could bear the cost of 15
a lawsuit that would achieve complete relief.” Id. For one, the OAG’s suit was the 16
product of a year-long investigation into Defendants’ activities, and there is no 17
evidence that any individual would have had the resources required to 18

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undertake such an extensive investigation or any subsequent litigation. 1
Additionally, because individual plaintiffs may be more willing to opt for 2
monetary relief over injunctive relief or settle their claims, “there is no assurance 3
that all named defendants herein would be sued or that relief against widespread 4
and future [violations] would be actively pursued.” Id. Furthermore, as the 5
district court identified, individual plaintiffs may be unwilling to bring suit due 6
to the heightened privacy concerns that accompany the reproductive health care 7
context. Thus, the OAG has sufficiently demonstrated the inability of individual 8
plaintiffs to obtain complete relief. 9
All three requirements for parens patriae standing have been satisfied in 10
this case. We therefore affirm the district court’s conclusion that the OAG has 11
standing to pursue its claims under the City Act.17 12
17 The dissent suggests the Supreme Court has “recently” expressed caution
regarding the interpretation of clauses conferring rights to sue. Dissenting Op. at
9. The cited 2011 case was context-specific and nowhere mentions the doctrine of
parens patriae. See Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 176 (2011)
(explaining that “the Title VII aggrievement requirement” does not necessarily
confer a “right to sue on all who satisfied Article III standing”). In any event, the
City Act is a state statute. The Supreme Court’s urging caution with respect to
federal statutes is neither here nor there.

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116
D. B. George’s Slow Walk 1
The district court found that defendant B. George engaged in a 2
“purposeful ‘slow walk’ in front of patients” on three occasions in 2017 in order 3
to “delay the patients’ access to Choices and thereby provide more time for 4
protestors to speak with the patients and hand them literature.” Griepp, 2018 WL 5
3518527, at *42. The district court concluded that in doing so, B. George violated 6
FACE, NYSCAA, and the Clinic Act by physically obstructing the patients’ 7
access. Id. The district court relied on Operation Rescue, 273 F.3d at 195, in which a 8
defendant violated FACE through physical obstruction by slowing access to the 9
clinic parking lot with a tactic that involved “dropping an item on the ground 10
and then retrieving it in slow motion.” See Griepp, 2018 WL 3518527, at *42 11
(quoting Operation Rescue, 273 F.3d at 195). 12
Defendants contend that the district court erred in coming to this 13
conclusion. They argue that there is no evidence that defendant B. George 14
rendered access impassable or unreasonably difficult or dangerous, nor did he 15
actually delay anyone at all. Defendants claim that patients could have walked 16
around B. George, and causing a slight deviation in course or a brief delay does 17
not amount to obstruction. 18

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117
We agree with the district court that defendant B. George’s slow walk was 1
physical obstruction in violation of FACE and its analogs. As the district court 2
noted, Operation Rescue held that slowing access, whether by dropping items and 3
retrieving them in slow motion or by “using [one’s] body to slow moving cars 4
and pushing literature and pamphlets through car windows” constitutes 5
physical obstruction. Operation Rescue, 273 F.3d at 195. B. George’s conduct is 6
similar. B. George used his body to hinder access to Choices by purposefully 7
walking slowly in front of patients. He did so to provide himself and his fellow 8
protestors more time to “appeal for the baby.” App’x at 1860. Therefore, like the 9
defendant in Operation Rescue, B. George intentionally interfered with patients’ 10
access to Choices through physical obstruction. 11
Defendants’ counterarguments to the district court’s analysis are 12
unavailing. As we have said earlier in this opinion, even short delays that force 13
patients to walk around a protestor can make access unreasonably difficult or 14
dangerous, especially when viewed in the cramped, crowded context of the area 15
outside Choices. In any event, the OAG does not need to prove that defendant B. 16
George actually delayed anyone. Attempting to do so can still constitute physical 17
obstruction. See Mahoney, 247 F.3d at 284 (concluding that the defendant engaged 18

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118
in physical obstruction by kneeling in front of an emergency exit door even 1
though he did not actually block anyone from exiting). We affirm the district 2
court’s conclusion that the OAG would likely succeed on the merits of its claim 3
that defendant B. George physically obstructed patients by engaging in a slow 4
walk delay tactic. 5
CONCLUSION 6
We conclude as follows. Though the district court did not clearly err in its 7
credibility determinations as to the OAG’s witnesses, these inferences do not 8
support the district court’s finding that the documentary evidence was 9
categorically unreliable. The district court therefore erred in failing to give any 10
weight to this evidence. This error, as it relates to the Recaps, was not harmless. 11
The district court also erred in applying FACE, NYSCAA, and the City Act 12
to portions of the challenged conduct in its preliminary injunction analysis and 13
in assessing irreparable harm. As relevant to the OAG’s likelihood of success on 14
the merits, we hold that FACE and its analogs proscribe delaying patients 15
without requiring a significantly long delay, crowding patients directly or 16
indirectly with bodies or signs, and touching or leaning into the windows and 17
doors of cars exiting a facility. As discussed in detail above, we also disagree 18

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119
with the district court’s conclusions regarding some of the speech at issue, which 1
we categorize as true threats. Furthermore, specific to the City Act, a defendant’s 2
intent to harass, annoy, or alarm may be inferred from the conduct of following a 3
patient or companion at a reproductive health care facility and making multiple 4
attempts to engage that individual, even for a short time, when the individual 5
explicitly or implicitly requested to be left alone. Finally, we find that the district 6
court erred in its conclusions on irreparable harm. 7
As to the cross-appeal, we affirm the district court’s conclusion that the 8
statutes are facially constitutional. We hold that the City Act’s follow-and-harass 9
and clinic-interference provisions are not void for vagueness. We also affirm the 10
district court’s holdings that the OAG has parens patriae standing to bring claims 11
under the City Act and that defendant B. George engaged in physical obstruction 12
through use of his slow walk delay tactic. 13
Accordingly, we vacate in part, affirm in part, and remand for further 14
proceedings consistent with this opinion. 15

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G UIDO C ALABRESI, Circuit Judge, concurring: 1
I join the majority opinion in full. There are powerful, conflicting values at 2
stake in this case. And we must balance those values carefully. The majority 3
opinion does just that. It decides, in part, in favor of anti-abortion protesters and, 4
in part, in favor of the State on behalf of abortion clinics and patients. It does so 5
on the basis of a painstaking analysis of the law and the facts. Such analysis is 6
what we ought to undertake in cases like this. 7
I write separately because, frankly, I do not understand the partial 8
dissent’s position with the respect to the New York City Access to Reproductive 9
Health Care Facilities Act (“City Act”). The dissent would conclude—contrary to 10
the majority; to the district court; to the appellant, the State of New York; and to 11
amicus curiae, the City of New York—that the State may not sue under the City 12
Act. That position, to me, raises an obvious problem, one that goes to federal- 13
state relations. 14
The partial dissent, in reaching the conclusion that the State may not sue 15
under the City Act, relies on federal court interpretations of federal statutes. The 16
majority, in reaching the opposite conclusion, relies on these sources too. But the 17
City Act is a state statute. That is so because the City is a creature of the State. 18

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2
Therefore, the question of whether the State may sue under the Act, like the 1
question of what conduct the Act prohibits, is purely a matter of state law. 2
The State likely may sue under the City Act. But I must say that 3
that conclusion is uncertain. And I cannot understand how one can say with 4
certainty that the State may not sue under the Act. 5
In situations where the meaning of a state statute is uncertain, it is usually 6
appropriate to certify the question to the state’s highest court. See, e.g., State Farm 7
Mut. Auto. Ins. Co. v. Mallela, 372 F.3d 500, 505 (2d Cir. 2004) (certification 8
appropriate where state law is unclear and state courts have not had an 9
opportunity to interpret it, where an unsettled question of state law raises 10
important issues of public policy, and where the question is likely to recur); 11
Allstate Ins. Co. v. Serio, 261 F.3d 143, 150–53 (2d Cir. 2001) (certification 12
appropriate where a state court’s interpretation of a state statute might avoid 13
federal constitutional questions); see also McKesson v. Doe, 141 S. Ct. 48, 50–51 14
(2020) (same). I believe that the uncertainty here strongly supports such 15
certification. 16
There are reasons, however, why certification by the majority may well be 17
inappropriate. The principal reason is that the majority remands to the district 18

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3
court for reconsideration of injunctive relief on any number of grounds, 1
including the application of the federal Freedom of Access to Clinic Entrances 2
Act (“FACE”) and the New York State Clinic Access Act (“State Act”). Hence, it 3
is hard to say that the majority’s result depends on the State’s ability to sue under 4
the City Act. And, if it does not, certification would run afoul of New York’s rule 5
that only “determinative” questions of New York law may be certified. N.Y. 6
C ONST. art. VI, § 3(9); N.Y. C OMP . CODES R. & R EGS. tit. 22, § 500.27(a). 7
A second reason why certification by the majority might not be 8
appropriate is that, while this case is pending, no injunction will issue. 9
Therefore, to the extent timing is important, as it usually is when a party seeks 10
preliminary relief, further delay might be undesirable. For this reason, too, but 11
primarily for the reason that the State’s authority to sue under the City Act might 12
not be determinative, I am—reluctantly—willing to forgo certification. But I 13
remain of the opinion that important questions in this case, namely, whether the 14
State may sue under the City Act and, if so, what conduct the City Act prohibits, 15
properly belong to the New York Court of Appeals and not the United States 16
Court of Appeals. 17

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4
Neither of the reasons why certification is inappropriate as to the majority 1
applies to the dissent. The dissent would deny an injunction on the basis of 2
FACE and the State Act, even though it agrees that some violations of those 3
statutes occurred. On that view, it is fairly obvious that, because the City Act’s 4
prohibitions are broader than those of FACE and the State Act, the question of 5
whether an injunction lies depends on the City Act. For the dissent, then, 6
whether the State may sue under the City Act, and what conduct the City Act 7
prohibits, are appropriate questions for certification. 8
Moreover, the issue of timing, from the dissent’s point of view, can be no 9
impediment. Again, the dissent would deny an injunction. And hence delay in 10
resolving whether an injunction should issue is no excuse. Such delay would 11
preserve the status quo, which the dissent favors. 12
In raising this problem, I do not mean to detract from the spirited 13
disagreement between the majority and dissent over the weighty values at stake 14
in this case. Far from it. But I believe that the disagreement might be better 15
resolved if we had a clearer understanding of what the City Act permits. 16

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1
D EBRA A NN L IVINGSTON, Chief Judge, concurring in part and dissenting in part:
Early on Saturday mornings, from about 6:30 a.m. to 10:00 a.m., congregants
from Church at the Rock, Grace Baptist Church, and Helpers of God’s Precious
Infants, along with various other individuals, gather outside of Choices Medical
Center (“Choices” or “Clinic”) in Queens, New York. Standing near the entrance
or walking along the public sidewalk around the facility, they attempt to dissuade
people from visiting the Clinic which, among other things, performs abortions.
In response to this activity, the Clinic has long operated a formal escort program
on Saturday mornings, so that volunteer escorts, who typically place themselves
on each side of a visitor, “greet and walk patients down the sidewalk to the
Choices entrance.” New York ex rel. Underwood v. Griepp, No. 17-CV-3706, 2018
WL 3518527, at *4 (E.D.N.Y. July 20, 2018). “On a typical Saturday, there are two
to three dozen protestors and escorts, with the escorts often outnumbering the
protestors two to one.” 1 Id. at *3.
1 The district court described the individuals who gather on Saturday morning
outside Choices as “protestors,” and so do I. But as in McCullen v. Coakley, 573 U.S. 464
(2014), the individuals here engage in a range of activity, “expressing their moral or
religious opposition to abortion through signs and chants,” but also seeking “not merely
to express their opposition to abortion, but to inform women of various alternatives and
to provide help in pursuing them.” Id. at 472, 489. The defendants thus described
some of their work as seeking “consensual conversation” to let “women who are
abortion-minded . . . know that there are other choices and that we will help them with

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2
Protesters had been appearing outside Choices on Saturday mornings for
some four years before the New York State Attorney General (“OAG”) initiated
the investigation into their conduct that resulted in the present case. Id. at *1, *4.
Then, for over a year, the OAG operated a high-mounted surveillance camera,
employed undercover investigators, and outfitted two Clinic escorts with hidden
recording devices to document protester activities. Id. at *4–5. Based on
information collected through this lengthy surveillance, the OAG filed a complaint
alleging numerous purported violations of federal, state, and local clinic access
laws. The district court—after hearing seventeen witnesses testify over fourteen
days, reviewing hundreds of pages of documentary evidence, watching dozens of
videos, and holding oral argument—found, in a magisterial 100-page opinion, that
all but three of the incidents identified by the OAG likely did not violate the law
and, of the three that did, none were likely to recur. I can discern no error, much
less an abuse of discretion, in any of these painstaking factual determinations, nor
in the careful legal analysis underlying them. See Anderson v. City of Bessemer City,
470 U.S. 564, 573–74 (1985) (“If the district court's account of the evidence is
that baby.” App’x 1830 (testimony of Pat Musco).

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3
plausible in light of the record viewed in its entirety, the court of appeals may not
reverse it . . . .”).
The majority, in contrast, sets aside both many of the district court’s well-
supported factual findings and its legal conclusions—although, even with its
flawed analysis, the majority cannot disturb all of the court’s work.2 In doing so,
2 As to the OAG’s appeal, I agree with the majority insofar as it concludes that (a)
any purported error in the district court’s failure to consider the Protester Experience
Questionnaires was harmless; (b) the district court’s credibility determinations were not
clearly erroneous; (c) Exhibits 7, 31, 39, 41, 49B, 55, and 102 do not demonstrate physical
obstruction; (d) Ranville Thomas’s statements to Mary Lou Greenberg and Ronald
George’s statements to escorts were not true threats; and (e) Exhibit 21 does not
demonstrate that the OAG is likely to succeed on its claim that Jasmine LaLande violated
the statutes by using force against an escort with whom she collided.
I specifically do not concur in the majority’s reasoning with regard to the last of
these conclusions, however, which misconstrues the intent element in the federal and
state statutes at issue. In relevant part, these statutes provide for penalties where a
defendant, by force, threat of force, or physical obstruction, “intentionally injures,
intimidates, or interferes with [another person], or attempts to [do the same],” because
that person is or has been “obtaining or providing reproductive services.” 18 U.S.C.
§ 248(a)(1); N.Y. Penal Law § 240.70(1)(a). “In ordinary English, where a transitive verb
has an object, listeners in most contexts assume that an adverb (such as [intentionally])
that modifies the transitive verb tells the listener how the subject performed the entire
action.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009). Thus, the intent
requirement here is not merely intending the physical act but acting with the specific
intent to injure, intimidate, or interfere. See Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir.
2004) (“The intent to injure, intimidate, or interfere is a separate intent requirement that
must . . . be proved by a FACE Act plaintiff.”); Norton v. Ashcroft, 298 F.3d 547, 554 (6th
Cir. 2002) (noting that FACE “is a specific intent statute” and that “application of the Act
depends . . . on specific facts demonstrating that plaintiffs acted with the requisite specific
intent”); United States v. Mahoney, 247 F.3d 279, 283–84 (D.C. Cir. 2001) (upholding district
court’s determination that FACE defendant acted with “requisite specific intent”).

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4
the majority neglects the deferential standard of review that ought to govern and
enunciates novel propositions of law that upend the delicate accommodation that
the federal, state, and local legislatures sought to achieve in the Federal Access to
Clinic Entrances (“FACE”) Act, the New York State Clinic Access Act (“State Act”),
and the New York City Access to Reproductive Health Care Facilities Act (“City
Act”). There is no justification in this record for the treatment afforded the
district court’s factual and legal analysis, particularly at the expense of “the most
fundamental of constitutional values”—“[t]he freedom to speak.” In re
Application of The Herald Co., 734 F.2d 93, 100 (2d Cir. 1984). Except with regard
to the specific conclusions noted herein, I respectfully dissent.
I. Cause of Action under the City Act
The OAG appeals the denial of the preliminary injunction, but I begin with
the cross appeal, which asserts, at the start, that the OAG may not bring an action
to enforce the City Act.3 This is the one point addressed herein on which I reach
3 Although the cross appeal refers to this as a “standing” issue, we have since
clarified that “what has been called ‘statutory standing’ in fact is not a standing issue, but
simply a question of whether the particular plaintiff ‘has a cause of action under the
statute.’” Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d Cir.
2016) (quoting Lexmark Int’l Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014)).
As to the rest of the cross appeal, I concur in (a) the majority’s determination that we have
jurisdiction to hear and Defendants have standing to bring the cross appeal; (b) under
our precedents, Brian George’s “slow walk” amounts to physical obstruction; and (c) the

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5
a different conclusion than the district court. The inquiry into whether the OAG
may sue under the City Act has two parts. First, the City Act must contain “a
statutory endorsement of the action.” Kendall v. Emps. Ret. Plan of Avon Prods.,
561 F.3d 112, 118 (2d Cir. 2009); see also Am. Psychiatric Ass’n, 821 F.3d at 359.
Second, the OAG must satisfy the requirements of parens patriae standing. The
district court analyzed only the second of these two parts. But the first is a
necessary antecedent as “plaintiffs [must] fall ‘within the class of plaintiffs . . .
authorized to sue.’” Am. Psychiatric Ass’n, 821 F.3d at 360 (quoting Lexmark
Intern., Inc., 572 U.S. at 128).
The majority addresses the missing first step but concludes, erroneously,
that the City Act is sufficiently broad to allow enforcement by the OAG because it
allows for enforcement by “any person whose ability to access a reproductive health
care facility has been interfered with.” N.Y.C. Admin. Code § 10-1004 (emphasis
added). The majority concedes that the City Act “does not explicitly list a state
government” in defining “person.” Majority Opinion (“Maj. Op.”) 111. It
FACE Act and the State Act are constitutional. Given my determination that the OAG
may not sue to enforce the City Act, I need not address the Defendants’ claim that the
City Act’s follow-and-harass and clinic-interference provisions are void for vagueness,
nor any other claims regarding that Act’s application.

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6
nonetheless concludes that the OAG can sue because broad terms like “party”
encompass State entities in other contexts. But this analysis is flawed because it
ignores the City Act’s text and structure, not to mention traditional tools of
statutory interpretation.
Beginning with the text, the City Act defines “person” as “an individual,
corporation, not-for-profit organization, partnership, association, group or any
other entity.” N.Y.C. Admin. Code § 10-1002. The OAG contends that this
provision authorizes it to sue. But absent from this list is any reference to the
State, a State agency or, indeed, any governmental body. There is no reason to
presume that this absence was not by intentional design, moreover, as the City
Council has shown through other provisions of the New York City Administrative
Code that “[w]here [it] intends to refer” to the State, a State agency, or to
governmental bodies generally, “it knows how to do so.” Dole Food Co. v.
Patrickson, 538 U.S. 468, 476 (2003); see e.g., N.Y.C. Admin Code § 8-102 (N.Y.C.
Human Rights Law) (“‘Person’ includes . . . partnerships, associations,
organizations, governmental bodies or agencies, corporations, . . . .” (emphasis
added)). It has “thus demonstrated in [another statute] that it [knows] how to
provide” for a state agency to bring suit, but has not used such language here.

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7
Meghrig v. KFC Western, Inc., 516 U.S. 479, 485 (1996); see also New York v. Mountain
Tobacco Co., 942 F.3d 536, 549 (2d Cir. 2019).
The conclusion that the OAG is not authorized to bring suit is only
reinforced by consideration of the City Act as a whole. First, the Act expressly
provides for enforcement by a different government entity: the City’s Corporation
Counsel. N.Y.C. Admin. Code § 10-1005. Second, the Corporation Counsel
may seek only injunctive relief pursuant to the City Act.4 Id. Construing the
general provision to allow for enforcement by government entities like the OAG
or the Corporation Counsel would render Section 10-1005 superfluous, violating a
fundamental canon of statutory construction. See, e.g., Yates v. United States, 574
U.S. 528, 543 (2015) (“We resist a reading of [a statutory provision] that would
render superfluous an entire provision passed in proximity as part of the same
Act.”). And to put it mildly, it would be unusual for the City to accord the State
Attorney General broader enforcement powers than its own Corporation Counsel,
yet that is precisely what the OAG contends the City Act does.
4 Conversely, the general enforcement provision upon which the OAG relies
provides for injunctive relief, treble damages, and attorneys’ fees. Id. § 10-1004.

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8
Alternatively, the OAG argues that its ability to enforce the City Act derives
from the following subsection: “This Chapter [of the City Act] does not limit the
lawful exercise of authority vested in . . . a law enforcement officer of the city, the
State of New York, or the United States acting within the scope of such person’s
official duties.” N.Y.C. Admin. Code § 10-1007(c). But disclaiming a limitation
on authority is not the same as granting a right to sue. See United States v. U.S.
Dist. Ct. for E. Dist. of Mich., S. Div., 407 U.S. 297, 303 (1972) (concluding that a
statute providing “[n]othing contained in this chapter . . . shall limit the
constitutional power of the President to take such measures as he deems necessary
to protect [national security]” doubtlessly “confers no power, as the language is
wholly inappropriate for such a purpose”). Put another way, the provision
indicates that the City Act does not limit the exercise of vested authority. But, as
explained above, the City Act does not vest the OAG with any authority, so
Section 10-1007(c) cannot and does not preserve a power that does not exist.
The majority considers none of these bedrock principles of statutory
construction. Instead, it looks to 42 U.S.C. §§ 1983 and 1985 and cases discussing
those statutes. But they bear little resemblance to the City Act, and the cases cited

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9
by the majority are inapposite.5 While both Sections 1983 and 1985 contain broad
language as to who is protected by those statutes—both refer to “the party [so]
injured,” 42 U.S.C. §§ 1983, 1985(3)—neither defines those terms as the City Act
defines “person.” Simply put, the breadth of an undefined term in federal civil
rights statutes reveals nothing about how properly to interpret a defined term in a
City’s municipal code. And even in the context of federal statutes, the Supreme
Court has recently cautioned against the majority’s unrestricted reading of clauses
that confer a right to sue. See Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 176
(2011) (referring to a prior statement that the phrase “person aggrieved”
“conferred a right to sue on all who satisfied Article III standing” as “ill-
considered” “dictum”); cf. Lexmark Int’l, Inc., 572 U.S. at 129–32 (reading statute
that authorizes suit by “any person who believes that he or she is likely to be
damaged by” false advertising to extend only to those who have suffered “an
5 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982), speaks
in general terms about parens patriae standing and its common law elements. It does not
consider when a statute authorizes suit by a government entity nor does it discuss 42
U.S.C. § 1983, as the majority claims. Moreover, the Commonwealth of Puerto Rico, the
plaintiff in Snapp, “participate[d] directly in the operation of the federal employment
scheme” it challenged. 458 U.S. at 610. The OAG plays no comparable role in the
operation of the City Act.

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10
injury to a commercial interest in reputation or sales”) (quoting 15 U.S.C. §
1125(a)(1)).
In sum, the majority errs in disregarding the City Act’s text, its structure,
and the tools that traditionally guide statutory interpretation. It relies on
inapposite authority and reaches the wrong result. I conclude that the OAG may
not sue to enforce the City Act and would direct the dismissal of its claims
pursuant to that Act on this basis. I do not further address those claims here. 6
II. The Clinic Escort Recaps
I now turn to the OAG’s appeal and, at the start, to the majority’s conclusion
that the district court’s determination not to grant preliminary relief must be
6 The concurrence suggests that I should want to certify the question of whether
the State may sue under the City Act because it would be better “if we had a clearer
understanding of what the City Act permits.” Concurring Op. 4. But I do not find
certification necessary. And contrary to the concurrence’s assertion that I “rel[y] on
federal court interpretations of federal statutes” to reach my conclusion that the OAG
does not have a cause of action under the City Act, Concurring Op. 1, it is only the
majority that relies on such interpretations. I merely apply the traditional canons of
statutory interpretation, tools that are not unique to federal judges. See, e.g., Avella v.
City of New York, 29 N.Y.3d 425, 343 58 N.Y.S.3d 236, 241 (2017) (applying the
“fundamental rules of statutory interpretation” and noting that “when interpretating a
statute, our primary consideration is to discern and give effect to the Legislature’s
intention. The text of a statute is the clearest indicator of such legislative intent . . . .”).
Based on my review of the City Act’s text, the State may not sue under the Act. And to
the extent the concurrence suggests that the answer to this question is uncertain, it is
unclear why the concurrence joins a majority opinion that holds otherwise while at the
same time suggesting that a supposed failure to certify lies with the dissent.

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11
vacated on the ground that the district court erred in declining to afford weight to
so-called “Clinic Escort Recaps” (“Recaps”) submitted by the OAG. These
Recaps, as the district court explained, are “feedback forms” completed by the
volunteer escorts and escort leaders “during a debriefing held inside Choices each
Saturday after the protestors leave.” Griepp, 2018 WL 3518527, at *5. They
constitute hearsay, not fitting within any exception. The district court, after
hearing testimony from seventeen witnesses and considering voluminous
videotape, determined, inter alia, that relying on the Recaps for their truth was
problematic because nothing in the circumstances surrounding their creation
suggests reliability but, to the contrary, “they tend to exaggerate the impropriety
of protestor conduct and generally fail to provide the context of the interactions
they describe.” Id. at *5; see id. at *5–*6. The majority rebukes the district court,
concluding that it was required to afford the Recaps weight, despite its unrefuted
determination that this evidence is unreliable. 7 Maj. Op. 19–20. This is
7 The district court judge heard live testimony from several individuals who, by
virtue of their positions, would have been involved in the creation and retention of
Recaps. These include Pearl Brady, a volunteer escort; Mary Lou Greenberg, an
independent contractor directing the volunteer escort program; Margot Garnick, an
escort leader; and Theresa White, also an escort leader. Griepp, 2018 WL 3518527, at *6–
7. The district court determined that none of these witnesses could be deemed wholly
credible and that each offered testimony that “prove[d] to be biased and unreliable.” Id.
The majority does not disturb these credibility judgments on appeal, but endeavors to

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12
incorrect, as a matter of law. It is also an unwarranted intrusion by appellate
judges on the role of the district court judge as fact finder in adjudicating the
propriety of preliminary relief.
This Court’s decision in Mullins does not say what the majority would have
it say. Not even close. Mullins merely holds that a district court may rely on
inadmissible hearsay in the context of a preliminary injunction proceeding, not
that it must. See Mullins, 626 F.3d at 52 (“[H]earsay evidence may be considered
by a district court in determining whether to grant a preliminary injunction.”
(emphasis added)). And specifically, we explained in Mullins that our
permissive approach to such evidence at preliminary injunction hearings is rooted
in “the summary nature of the remedy” sought and the necessity of “provid[ing]
timely provisional relief.” Id.; see also id. at 51–52 (“The Supreme Court has
observed that the decision of whether to award preliminary injunctive relief is
often based on ‘procedures that are less formal and evidence that is less complete
than in a trial on the merits.’” (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395
(1981)). Other circuits have likewise emphasized that “the facts and
render them beside the point by dictating that the district court afford weight to rank
hearsay emanating from the very group from which these in-court witnesses derived.
Id. For the reasons stated herein, however, this directive is without legal basis.

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circumstances of a given case,” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 719
(3d Cir. 2004), “including the need for expedition,” Asseo v. Pan Am. Grain Co., Inc.,
805 F.2d 23, 26 (1st Cir. 1986), inform how much weight, if any, to accord hearsay
evidence at the preliminary injunction stage—evidence, to be clear, which could
not even be considered in a trial on the merits.
In accord with this well-established precedent, the district court considered
the “Recaps,” prepared by the escorts, and concluded that this unreliable hearsay
should not be afforded weight in the present case both because it was unreliable
and because there was no need to consider it: “[T]he parties have already
conducted discovery and presented extensive live testimony from seventeen
different witnesses. That is, the preliminary injunction hearing was hardly
‘preliminary,’ and that fact remove[d] the urgency usually supporting the use of
hearsay testimony in this setting.” Griepp, 2018 WL 3518527, at *5; see also id. at
*1 (acknowledging that hearing, originally slated to be an expedited trial, was
“[re]styled as a preliminary injunction hearing since the case could not be fully
resolved”). I see no abuse of discretion in the district court’s decision to focus on
more reliable evidence that would be admissible at a trial—videos, photographs,

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and live testimony—rather than the secondhand statements of unknown or non-
testifying escorts.8
Finally, even if there were error here—and there is not—the majority errs
yet again by failing to recognize that any error of the sort that it discerns “did not
substantially influence” the outcome of the proceeding and is thus utterly
harmless. Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010) (quotation
marks omitted). The Recaps were largely cumulative of the in-court testimony
of escorts and escort leaders—testimony that the district court found to contain
“biased and unreliable” inaccuracies. Griepp, 2018 WL 3518527, at *6–7; see also
United States v. Hendricks, 921 F.3d 320, 330 (2d Cir. 2019) (suggesting that
cumulative evidence rarely impacts outcome). Indeed, the OAG concedes that
every incident described in the Recaps was described in witness testimony at the
hearing.9 See AG Supp. Ltr. Br. 7 & nn.3–5, Doc. No. 298 (filed May 11, 2020).
8 The majority relies on Bradford Trust Co. v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 805 F.2d 49 (2d Cir. 1986), for the proposition that giving no weight to hearsay
evidence is error. But Bradford Trust involved a court that accorded no weight to a
document admitted at a bench trial because it contained hearsay even though it fell within
a hearsay exception. Id. at 55. We explained that such disregard was “inconsistent
with the notion of having exceptions to the hearsay rule.” Id. The Recaps, however,
would not be admissible for their truth at a trial. Yet the majority asserts that the district
court was required to accord them weight. Bradford Trust does not support this startling
proposition.
9 Compare, e.g., App’x 431 (escort testifying that a protester “crashed into [an

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And to the limited extent that the Recaps did not repeat in-court testimony, they
contradicted it—hardly a reason to force the district court judge to credit these out-
of-court statements.10
In sum, and contrary to the majority, I see no reason why, having
disbelieved live testimony, the district court was nevertheless obligated to afford
weight to hearsay versions of the same thing—evidence that fell within no hearsay
exception, and could not be admitted in support of a permanent injunction at trial.
The majority errs in rejecting the meticulous and careful fact finding of the district
escort] shoulder-checking her, or just about knocked her over”) with App’x 2265 (Recap
describing same incident where protester “slam[med] into [an escort] . . . with his
shoulder”); compare App’x 1262 (escort testifying that protester “was following a patient
. . . so closely behind that she actually stepped on the patient’s shoe causing it to break”)
with App’x 2321 (Recap describing protester “follow[ing] [patient] . . . so close that she
stepped on the back of the woman’s flip flop, which broke the strap”); compare App’x 551
(escort testifying that a protester “ran a couple into the street” in effort to avoid protestor)
with App’x 2259 (Recap stating that protester “ran a couple into the street” in effort to
avoid protestor).
10 Certain Recaps directly contradict escort testimony. See, e.g., Griepp, 2018 WL
3518527, at *5 (“For example, one Clinic Escort Recap includes the following statement:
‘Mary Lou [Greenberg] called [the police] at 8:10 after being shoved by Ron [George] and
Griepp.’ But, at the preliminary injunction hearing, Greenberg explained that neither R.
George nor Griepp actually shoved her.” (citation omitted)); compare App’x 2250 (Recap
indicating that a protester “knocked into [a] woman’s child”) with App’x 1435 (escort
testimony admitting that protester “came very close but didn’t step on the child”). But
these contradictions, considered in context, only further buttress the district court’s twin
determinations that the escorts offered flawed testimony and that the Recaps were
unreliable, thus supporting the district court’s decision not to issue an injunction.

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16
court. It errs, as well, in its understanding of Mullen and the appropriate role of
appellate courts, which does not include directing district courts that they must
give weight to inadmissible and unreliable hearsay in determining whether to
afford preliminary relief.
III. Likelihood of Success on the Merits
I next turn to my disagreement with the majority’s conclusions, at odds with
the district court’s, that: (1) the videotapes marked as Exhibits 138, 23, 307, and
119, as well as 58, 105, and 137, demonstrate physical obstruction; and (2) various
statements by Ranville Thomas, discussed herein, constituted true threats for
which he may be held liable pursuant to FACE and the State Act. Simply put, the
majority misconstrues both the statutes and relevant precedent in suggesting that
this evidence forms a basis for preliminary relief. The majority’s approach to
FACE and the State Act, moreover, gives short shrift to the First Amendment
rights of the protestors, notwithstanding this Court’s admonition that we are to be
“mindful . . . of the fact” that the erroneous application of statutes such as these
“threatens to impinge legitimate First Amendment activity.” New York ex rel.
Spitzer v. Operation Rescue Nat’l, 273 F.3d 184, 195 (2d Cir. 2001). Guided by the
statutory text, precedent, and the district court’s factual findings, I would hold that

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the district court did not abuse its discretion in determining that none of the cited
material demonstrates a likelihood of success on the merits.
A. Physical Obstruction
As relevant to physical obstruction, a person violates FACE and the State
Act when, “by physical obstruction,” he or she “intentionally injures, intimidates,
or interferes with” another person (or attempts to do so) “because that person is
or has been . . . obtaining or providing reproductive health services.” 18 U.S.C.
§ 248(a)(1) (emphasis added); see also N.Y. Penal Law § 240.70(3)(c). Both statutes
define “physical obstruction” as “rendering impassable ingress to or egress from a
facility that provides reproductive health services . . . , or rendering passage to or
from such a facility . . . unreasonably difficult or hazardous.” 18 U.S.C. § 248(e)(4)
(emphases added); see also N.Y. Penal Law § 240.70(3)(d).
Notwithstanding the clarity of this statutory language, drafted to prohibit
“illegal interference with clinic access,” but not to stifle “legitimate protest
activities,” Operation Rescue, 273 F.3d at 195, the majority suggests that FACE (and
the almost identically worded State Act) are violated by, inter alia, “delaying
patients even for a brief amount of time” to offer a pamphlet, standing on a
sidewalk holding a sign in an area where no clinic visitors are to be found, and by

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“touching or leaning into the windows and doors of cars,” even for a consensual
conversation. Maj. Op. 61. The majority thus gives short shrift to the
requirement that a defendant’s conduct render clinic access, at a minimum,
“unreasonably difficult or hazardous.” And it simply omits the specific intent
element from these two statutes, opining that the intent element is satisfied
whenever a defendant intends to perform an act (such as providing someone a
pamphlet or standing on the sidewalk with a sign) and is aware that the “natural[]
and probabl[e]” consequence of this action may be to delay clinic access in even
the most incidental of ways.11 See Maj. Op. 35–36.
Simply put, this is an abandonment, not an interpretation, of the statutory
language. To be clear, there are statutes that proscribe protest activities around
abortion clinics pursuant to which even a de minimis amount of contact with
patients or providers might constitute a violation. See, e.g., Hill v. Colorado, 530
U.S. 703, 707 (2000) (upholding Colorado statute that “regulates speech-related
11 As noted supra in footnote 3, this is incorrect. As numerous courts have held,
FACE “is a specific intent statute.” Norton, 298 F.3d at 554 (emphasis added); see also
Mahoney, 247 F.3d at 283–84 (noting “requisite specific intent” required for liability).
Both FACE and the State Act require a specific intent to “injure[], intimidate[], or
interfere[] with” an individual because that individual is or has been “obtaining or
providing reproductive services.” 18 U.S.C. § 248(a)(1); N.Y. Penal Law § 240.70(1)(a).
The majority can cite no contrary precedent.

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conduct within 100 feet of the entrance to any health care facility” by prohibiting
any person “to ‘knowingly approach’ within eight feet of another person, without
that person’s consent, ‘for the purpose of passing a leaflet or handbill to,
displaying a sign to, or engaging in oral protest, education, or counseling with
such other person’”) (quoting Colo. Rev. Stat. § 18-9-122(3) (1999)); see also Price v.
City of Chicago, 915 F.3d 1107, 1109 (7th Cir. 2019) (discussing Chicago ordinance
prohibiting “’sidewalk counselors” from “approaching within eight feet of a
person in the vicinity of an abortion clinic if their purpose is to engage in
counseling, education, leafletting, handbilling, or protest”). But FACE and the
State Act are not among these “buffer zone” or “bubble zone” laws.12 Notably,
moreover, the Supreme Court has recognized such laws to “impose[] an especially
significant First Amendment burden” on traditional forms of expression such as
“normal conversation and leafletting on a public sidewalk.” McCullen v. Coakley,
573 U.S. 464, 488–89 (2014). The Court has emphasized that such laws are
12 Indeed, as to the State Act, the New York Legislature has repeatedly considered
a bill that would impose a twenty-five foot buffer zone around clinics providing
reproductive services, but the bill has yet to move past the “in Committee” phase in the
five times it has been introduced since 2011. See Proposed Legislation to Amend the
Penal Law and the Civil Rights Law, in Relation to Enacting the Reproductive Health
Care Facilities Access Act, Assemb. A804, 2019–2020 Leg., Reg. Sess. (N.Y. 2019)

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constitutionally infirm when they fail to meet the requirement of narrow tailoring
precisely because they “unnecessarily sweep[] in innocent individuals and their
speech” and “exclude [them] from areas historically open for speech and debate.”
Id. at 493, 494.
The majority’s ill-conceived interpretation of FACE and the State Act as
relates to physical obstruction in effect converts these statutes into “buffer zone”
equivalents, thereby threatening the ongoing suppression of legitimate First
Amendment activity. Indeed, if the majority’s interpretation of these two
statutes were correct (and it is not), these laws would most probably be
unconstitutional. To more concretely demonstrate why this is so, I now turn to
each of the exhibits the majority takes to evince obstruction.
1. Exhibit 138
The district court accurately summarized the conduct depicted in Exhibit
138, a videotape, as follows:
[Osayinwense] Okuonghae directly approached a patient and her
companion in an attempt to speak with the patient and hand her a
pamphlet. The patient and companion turned slightly and, without
slowing their pace, walked around Okuonghae and on to the Clinic
door. Okuonghae made no effort whatsoever to prevent the patient and her
companion from walking past him.

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21
Griepp, 2018 WL 3518527, at *18 (emphases added) (citations omitted).
Okuonghae delayed the patient “by one second, at most.” Id. at *44.
The majority does not suggest that this description of the facts is clearly
erroneous. 13 Rather, it claims the district court committed legal error by
assuming as a matter of law that an incidental delay is insufficient to “render[]
passage to or from [the] facility . . . unreasonably difficult or hazardous.” In the
majority’s view, “[t]hat patients were delayed at all is sufficient to establish a
violation” by physical obstruction. Maj. Op. 40. But the district court did not
conclude as a matter of law that physical obstruction resulting in a short delay can
never render access to a facility “unreasonably difficult or hazardous.” The court
concluded simply that Okuonghae “made no effort to interfere with [the patient
and her companion’s] progress toward the clinic” and that the videotape reflects
no physical obstruction. Griepp, 2018 WL 3518527, at *44. The degree of delay—
13 Indeed, it is the majority’s description, not the district court’s, which diverges
from the uncontroverted evidence. Contrary to the majority’s suggestion, there were
not “two to three dozen escorts and protesters . . . on the modestly sized sidewalk” when
Okuonghae attempted to hand this patient a pamphlet. Maj. Op. 41. The video shows
three protesters, besides Okuonghae, scattered about the sixteen-foot wide sidewalk: two
of them stand near the curb and the third trails some distance behind the patient and her
companion. None ever impede the patient’s path to the door and at all times there
remains a stretch of unobstructed sidewalk at least a few feet wide between the patient
and the clinic entrance.

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22
“one second, at most”—simply informed the district court’s analysis but was in no
way dispositive. Id.
Moreover, even if the district court had held that a one second delay is per se
not a violation of the statute, its interpretation would have been considerably
closer to the mark than the majority’s conclusion that it is sufficient “[t]hat patients
were delayed at all . . . to establish a violation.” Maj. Op. 40. Physical
obstruction is defined in the statutes, in relevant part, as “rendering passage to or
from” Choices “unreasonably difficult or hazardous,” 18 U.S.C. § 248(e)(4); N.Y.
Penal Law § 240.70(3)(d), a definition requiring substantially more than the less-
than-one-second delay resulting from an encounter with a pamphleteer who does
not seek in any way to block a person’s forward movement. And, again, the
majority’s approach omits the statutes’ specific intent requirement—a requirement
that is not satisfied upon proof of merely the de minimis contact involved in
endeavoring to hand someone a pamphlet as that individual walks by.
Compare Operation Rescue, in which this Court concluded that the district
court there did not abuse its discretion in finding “that the plaintiffs [would likely]
carry their burden in demonstrating that [the protester] physically obstructed
patient access to covered facilities.” 273 F.3d at 195. In that case, “the record

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[was] replete” with evidence of the protestor’s obstructive conduct including, inter
alia, obstructing driveway access into the clinic parking lot, using her body to slow
moving cars, and blocking patients inside their automobiles to prevent exit. Id.
But even in the context of such “egregious conduct,” Operation Rescue cautioned
against using “the rubric of ‘constructive obstruction,’ an uncertain and potentially
slippery concept,” to characterize legitimate protest activities (such as imploring
persons not to go inside or, as here, attempting to hand them pamphlets), as illegal
interference. See id.
But this is precisely what the majority does, with its determination that any
delay “is sufficient to establish a violation.” Maj. Op. 40. In effect, the majority
creates a “buffer zone” equivalent with its disregard of the statutory language, but
one lacking any indicia of narrow tailoring, such as a delineated geographical
space in which it is to apply. 14 See Hill, 530 U.S. at 730 (noting that the “8 foot
14 The majority seeks to avoid this conclusion by suggesting, incorrectly, that my
criticism of its approach is limited to the statutes’ intent requirement, and that even if a
protester’s conduct cannot be said to evince an intent to injure or intimidate, the
conduct recounted herein could suggest an intent to interfere. Maj. Op. 59–60. But
these statutes, as already recounted, provide that a person violates them when, “by
physical obstruction,” he or she “intentionally injures, intimidates, or interferes with”
another person “because that person is or has been . . . obtaining or providing
reproductive health services.” See, e.g., 18 U.S.C. § 248(a)(1)(emphasis added). And
both define “physical obstruction,” in relevant part, as rendering passage to or from a
facility “unreasonably difficult or hazardous.” 18 U.S.C. § 248(e)(4); N.Y. Penal Law §

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[buffer zone] restriction occurs only within 100 feet of a health care facility—the
place where the restriction is most needed”). This is the very result that Operation
Rescue warned of in this context: namely, that ill-conceived approaches to statutory
interpretation might lead not simply to legal error, but to the court-sanctioned
curtailment of legitimate First Amendment activity. 273 F.3d at 195. Indeed, if
the majority’s interpretation of these statutes were correct (and it is not) they
would likely be unconstitutional as “burden[ing] more speech than necessary to
serve the relevant governmental interests.” See Schenck v. Pro-Choice Network of
W. N.Y., 519 U.S. 357, 367, 379–80 (1997) (striking down an injunction that
instituted “floating buffer zones” to prohibit “demonstrating . . . within fifteen feet
of any person or vehicle seeking access to or leaving such facilities” because “lack
of certainty” of how to comply would “burden more speech than necessary to
serve the relevant governmental interests” (internal quotation marks omitted)); see
also McCullen, 573 U.S. at 488 (striking down buffer zone that “made it
substantially more difficult for petitioners to distribute literature to arriving
patients”); Madsen v. Women’s Health Ctr., 512 U.S. 753, 774 (1994) (noting that “it
240.70(3)(d). Okuonghae’s de minimis interference with clinic access (which was no
interference at all) simply does not comport with this statutory definition.

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is difficult, indeed, to justify a prohibition on all uninvited approaches of persons
seeking the services of [a] clinic, regardless of how peaceful contact may be,
without burdening more speech than necessary to prevent intimidation and
ensure access to the clinic” (emphasis omitted)). In sum, nothing in Exhibit 138
establishes a likelihood of success on the merits, if these statutes are properly
construed. The majority errs in concluding otherwise.
2. Exhibit 23
The majority’s reasoning does not improve in its consideration of Exhibit 23.
Exhibit 23 depicts an individual approaching Choices accompanied by two escorts.
Griepp, 2018 WL 3518527, at *18. In the district court’s words:
It also shows Okuonghae . . . standing near [the] main entrance and
then approaching the patient and her escorts from that direction. As
they approach, it appears that [a third escort] is in the patient’s path
and Okuonghae is off to the side, reaching out his arm in an attempt
to hand her a pamphlet. [The escort] then moves out of the way as
the patient’s two escorts step in front of her and motion for
Okuonghae to get even further out of the way. The entire interaction
slows the patient’s access to Choices by perhaps a second.
Id. The majority concedes that this video shows “an escort that stepped in front
of the patient.” Maj. Op. 45 (emphasis added). Nevertheless, the majority
concludes that Okuonghae may be held liable for obstructing the patient’s path

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because he “[c]rowd[ed]” the patient and “thereby creat[ed] a logjam in which
others inadvertently impede [her].” Id. at 45.
The majority is wrong both on the facts and on the law. On the facts, and
as the district court explained, Okuonghae stayed off to the side and was the only
protester who approached the individual on her way into the clinic. On the other
hand, she was flanked by two escorts while a third stepped into her path to block
Okuonghae from handing her a pamphlet, which is what “create[ed] a logjam.”
Okuonghae merely approached her, arm outstretched, in the hopes of handing her
a pamphlet while staying out of her way. Indeed, when asked, he moved away
even further. See McCullen, 573 U.S. at 467 (“[T]o determine whether someone
intends to block access to a clinic, a police officer need only order him to move; if
he refuses, then there is no question that his continued conduct is knowing or
intentional.”).
The majority gives lip service to the proposition that “[s]imply attempting
to speak with or hand pamphlets to patients, without more, does not give rise to a
FACE violation.” Maj. Op. 53. But the majority, in effect, bars this activity at
Choices by suggesting that the something “more” that is required includes even a
de minimis delay in a client’s forward motion caused by escorts’ efforts to prevent

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any pamphlet from being received. In other words, any act by a protester—
including reaching out, pamphlet in hand—obstructs access to a clinic so long as
the clinic’s employees or volunteers react to that act by crowding around, even
momentarily slowing the visitor down. This is not consistent with the statutory
language. And it is indefensible in light of the Supreme Court’s recognition, in
McCullen, that “’[n]o form of speech is entitled to greater constitutional
protection’” than the handing out of leaflets on a public sidewalk, and that it is
simply “wrong to downplay” burdens on speech in this “especially significant”
First Amendment context. 573 U.S. at 488, 489 (quoting McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 347 (1995)); see also Schenck, 519 U.S. at 377 (“Leafletting and
commenting on matters of public concern are classic forms of speech that lie at the
heart of the First Amendment, and speech in public areas is at its most protected
on public sidewalks, a prototypical example of a traditional public forum.”).
3. Exhibit 307
A similar error infects the majority’s assessment of Exhibit 307. The district
court described Exhibit 307 as follows:
Exhibit 307 shows that, on the morning of March 25, 2017, a patient’s
access to the Clinic door was accidentally and briefly impeded, but
not by [the defendant Ronald] George. At the beginning of the
incident, R. George reached the patient first and handed the patient a

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pamphlet, which she took. Two escorts soon reached the patient and
attempted to position themselves on each side of her, with one escort
stepping in front of R. George and slowing his pace, forcing R. George
to step around the escort to access the patient and continue his
attempts to engage her in conversation. As R. George did so, the
escort on the far side of the patient stepped partially and then
completely in front of her in an attempt to block R. George’s access to
her. This momentarily blocked the patient’s path to the Clinic
entrance, causing her to slow down and then walk around the other
side of the escort standing in front of her. From there, the patient
walked to the door without impediment.
Griepp, 2018 WL 3518527, at *11 (citations omitted).15
The majority rejects this “interpretation of the video” as clearly erroneous.
Maj. Op. 51. In the majority’s view, “R. George actively stepped around the
escort to access the patient . . . [and] walk[ed] directly in front of the patient . . . .
As a result, both the patient and the escort slowed to a near stop, and the patient
then walked around the other side of both escorts and continued into the clinic.”
Id. A careful review of Exhibit 307, however, demonstrates that R. George only
briefly stepped in front of the patient while circumnavigating the escort who had
stepped in front of him, but R. George largely remained to the side of the patient’s
path. Indeed, the only person who ever fully blocks the patient’s path is an
15 To avoid confusion between the two defendants with the same last name,
Ronald George and Brian George, the district court referred to them as R. George and B.
George, respectively. I do the same here, where helpful for clarity’s sake.

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escort, not R. George. And the patient “change[d] course,” id. at 52, not because
of R. George’s momentary presence in her path, but because an escort stepped
squarely in front of her.
Under the circumstances, the district court’s conclusion that R. George did
not render the patient’s access to the Clinic unreasonably difficult or hazardous,
as the statutory language requires, is not clearly erroneous. Even if reasonable
minds could differ on what caused the patient to “change [her] course,” see id., the
majority thus has no basis for substituting its judgment for that of the district
court’s. Nor does the majority offer any grounds for setting aside the district
court’s additional finding that R. George lacked the requisite intent of “injur[ing],
intimidat[ing], or interfer[ing] with” the individual, a required element pursuant
to these statutes. See 18 U.S.C. § 248(e)(4); N.Y. Penal Law § 240.70(3)(d). There
is nothing in Exhibit 307 demonstrating that R. George intentionally obstructed
any individual’s access to Choices. The majority’s rejection of the district court’s
fact finding as clearly erroneous is thus without factual or legal support.
4. Exhibit 119
The majority’s analysis of Exhibit 119, a photograph, illustrates yet again its
distortion of the statutory language—a distortion that, in effect, transforms most

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any effort to engage in legitimate protest activity outside Choices into a physical
obstruction, violative of FACE and the State Act. The district court’s fact finding
as to Exhibit 119 was careful and amply supported. The majority’s rejection of it
as clearly erroneous is, as before, utterly inexplicable.
The district court correctly determined that Exhibit 119 does not depict the
defendant, Patricia Musco, either “intentionally or even accidentally obstruct[ing]
access to Choices.” Instead, it “shows Musco narrowing the sidewalk by holding
two signs perpendicular to [a] Clinic wall.” Griepp, 2018 WL 3518527, at *12. To
be sure, signs could be used to block people from accessing a facility. Here,
however, Musco simply positioned her signs so as to “narrow[] the low-traffic
portion of the sidewalk to the south of the Clinic entrance, facing her sign[s]
north.” Id. (citation omitted). The district court determined that Musco was
holding her signs so as to be visible to the vast majority of clinic visitors,
approaching from the north, “all of whom would reach the Clinic door without
[even] passing Musco.” Id. The district court concluded that “because the
photo does not show any patients approaching, and because patients rarely
approach[] Choices’ main entrance from the south,” “one could not infer that

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Musco’s positioning in this picture made access to Choices unreasonably difficult
for any patient.” Id. (citation omitted).
Somehow, the majority disagrees. The majority infers from the fact that
“Musco’s signs . . . significantly shortened the space available for walking” that
Musco “was []aware that her signs would interfere with pedestrian access,” even
though there are no pedestrians depicted in Exhibit 119 to be the subject of any
such interference. Maj. Op. 43. Moreover, Exhibit 119 shows several feet of
open sidewalk unobstructed by Musco’s signs.16 The majority thus provides no
basis for rejecting the district court’s factual findings that Musco neither
obstructed passage nor intended to do so. These findings were in no way
implausible, let alone clearly erroneous. See, e.g., App’x 1830 (testimony of Pat
Musco) (responding that it was “never” her “intent to intimidate a person out of
entering the clinic” or “ever to block a person’s access to the clinic”).
Instead, it is the majority’s view of the record that cannot be supported.
Exhibit 119 depicts Musco holding up signs on a public sidewalk, which is
16 In addition, the district court concluded that the record shows that the
protestors here sought to avoid unlawful conduct, Griepp, 2018 WL 3518527, at *33, and
Kenneth Griepp, a leader of the protesters who, like Musco, are affiliated with Church at
the Rock, testified that he told protesters to “move [their] sign[s] to the side” to avoid
“slowing [pedestrians] down” when pedestrians appeared. App’x 1739.

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quintessential First Amendment activity. See Marcavage v. City of New York, 689
F.3d 98, 104 (2d Cir. 2012). Yet the majority concludes that this photograph
evidences unlawful obstruction, rendering a preliminary injunction appropriate,
even though there were no pedestrians around to be obstructed and Musco’s
placement of her signs still left open approximately one-third of a rarely-trafficked
sidewalk that is over sixteen feet wide. See App’x 2878 (showing sidewalk
dimensions). This is not abuse of discretion review, but the distortion of the
record to “characterize[] legitimate protest activities as illegal interference with
clinic access,” Operation Rescue, 273 F.3d at 195, suppressing First Amendment
rights.
5. Exhibits 58, 105, and 137 (Conduct Involving Vehicles)
Conduct that on the sidewalk might not interfere substantially with ingress
and egress from a facility may do so in the context of automobiles, simply by virtue
of the special circumstances they present. It can be hazardous for both a protestor
and a car’s occupants when the protestor sticks his hand through the window of a
vehicle as it moves away or stands in such a manner that a car door cannot close
and the vehicle cannot depart. We have recognized as much by holding that
“using [one’s] body to slow moving cars and pushing literature and pamphlets

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through car windows” can amount to physical obstruction that renders access to
or departure from a clinic unreasonably difficult or hazardous. Operation Rescue,
273 F.3d at 195. To the extent the majority merely reiterates this proposition, I
agree. See Maj. Op. 47.
But the majority, again, goes further and gets it wrong. The district court
found based on a review of Exhibits 58, 105, and 137, all videotapes, that none
involved physical obstruction. In Exhibit 58, as recounted by the district court,
Okuonghae “lean[s] beside and speak[s] into an open car window,” and “[t]he
video does not suggest a non-consensual interaction—let alone that Okuonghae
obstructed access to or from the Clinic.” Griepp, 2018 WL 3518527, at *18. The
district court similarly concluded that Exhibit 105 does not “suggest [a] non-
consensual interaction[].”17 Id. at *12. Finally, Exhibit 137 depicts Greenberg, the
director of the volunteer escort program, speaking to the passenger of a parked
17 The majority inexplicably imposes its own interpretation of the video, deciding
that because Musco is seen “physically leaning onto the passenger door, resting her purse
and hands on the passenger window frame,” the interaction was not consensual. Maj.
Op. 48–49. But Exhibit 105, a short video, lacks any context to support this conclusion.
Exhibit 49B, which both the district court and the majority appear to confuse with Exhibit
105, does show Musco approaching the car at issue. But far from suggesting that the
encounter was not consensual, this video suggests that Musco approached the vehicle
simply to hand the driver a pamphlet after the patient had exited the car and entered
Choices.

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car. After Greenberg “effectively shepherd[s]” this person “from the car to the
entrance without impediment from the protestors or anyone else,” Thomas, a
protestor, steps up to the open car door “and lean[s] down to speak to the driver.”
Id. at *15. As the district court accurately describes, “[a] minute later, Thomas
close[s] the car door for the driver, and then continue[s] to speak with the driver
through the window for another minute and a half before the car [drives] off
without impediment.” Id. In sum, the district court examined the relevant
videos and concluded that as to each incident, the OAG had “failed to provide
credible evidence that the defendants . . . engaged in any . . . obstructive conduct.”
Id. at 43.
The majority rejects this careful fact-finding, claiming that “our precedent”
compels the conclusion that each exhibit evidences statutory violations. Maj. Op.
47. It does so, however, only by adopting a novel rule that consent is immaterial
under the statutes—in effect, that even if a car’s occupants willingly agree to speak
with a protestor outside of a facility, the statutes are still violated because a
protestor’s “conduct in touching the car[]” makes “egress unreasonably difficult
or hazardous,” and also “restrict[s] the car[‘s] freedom of movement.” Id. at 50;
see id. at 49 (“There is no statutory exception for consensual conversations.”). But

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this distorts the statutory language beyond recognition. These statutes, in
relevant part, prohibit individuals, by physical obstruction, from “intentionally
injur[ing], intimidat[ing] or interfer[ing] with . . . any person because that person
is or has been . . . obtaining or providing reproductive health services.” 18 U.S.C.
§ 248(a)(1); see also N.Y. Penal Law § 240.70(1)(a). A protester who has only
consensual conversations with a car’s occupants (and in at least Exhibit 157, the
car’s driver and not the “person . . . obtaining or providing health services”) is not
acting with an intent to injure, intimidate, or interfere, and has not rendered access
to or from a clinic “unreasonably difficult or dangerous.” In holding otherwise,
the majority departs from the statutory language, once again without regard to the
outright suppression of legitimate First Amendment activity.
B. Threats of Force
FACE and the State Act also penalize, in relevant part, those who, “by threat
of force,” intentionally injure, intimidate, or interfere with a person (or attempt to
do the same) “because that person is or has been . . . obtaining or providing
reproductive health services.” 18 U.S.C. § 248(a)(1) (emphasis added); see also
N.Y. Penal Law § 240.70(1)(a)-(b). But only statements proscribed as “true
threats” under the First Amendment give rise to liability under these provisions.

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See Operation Rescue, 273 F.3d at 196–97. The majority concludes that the OAG
established a probability of success on the merits because Ranville Thomas
supposedly violated this provision on three separate occasions by issuing “true
threats.” Again, however, it reaches this conclusion only by unjustifiably
rejecting the district court’s careful fact-finding.
Thomas, who testified during the course of the fourteen-day hearing, is
affiliated with the Church at the Rock and, at the time of the hearing, had protested
outside Choices on Saturday mornings for some six years, along with other
individuals associated with that church. The district court noted that Thomas
“regularly preached about the fragility of life and the need to repent and accept
God as one’s savior.” Griepp, 2018 WL 3518527, at *35. Indeed, Theresa White,
one of the escort leaders who testified at the hearing, affirmed that Thomas said,
“[Y]ou never know when you’re going to die,” whenever “there [was] something
violent in the news,” or in one instance, after witnessing “a knife fight across the
street,” suggesting that Thomas’s statement was a broader reference to the
uncertainty of life. App’x 1580–81. As White put it, this was Thomas’s
“mantra.” Id. at 1580. And “[i]t is worthy of note,” the district court observed,

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“that, on the videos introduced into evidence, when Thomas preaches, he never
does so in a threatening tone.” Griepp, 2018 3518527, at *38.
At the hearing, Thomas did not deny making statements to escorts to the
effect of “[y]ou never know when you’re going to die,” “[you] never know when
death may come,” and that “[you] could die from being shot by a bullet while on
the sidewalk.” See id. at *13–14, *35. Nor did he deny making a comment to
Greenberg in the aftermath of the knife fight between two unknown persons
across the street from Choices that “[t]hat could be you one day. Someone could
pull a knife on you.” Id.
But Thomas did deny threatening either escorts or patients and he testified
that his statements about the need for repentance and the unpredictability of death
come from the Bible, and were stated in that context. See App’x 1878 (testimony
of Ranville Thomas) (“I want to be clear, . . . whenever I say a comment . . . I use it
in a context. If there’s no context, I’m not using [a] phrase [such] as ‘you can die
at any time.’ I would use . . . the book of Hebrews in the Bible, Chapter 9, Verse
27. And it says, ‘And it’s appointed once for men to die and then comes
judgment.’ So I would take that phrase and say, you know, this is what the Bible
says[.]”) (quotation marks and capitalization added). The district court, unlike

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this Court, heard this testimony and concluded that “it appears that Thomas made
his statements to the escorts about the shortness of life and the randomness of
death as part of his religious message and not as threats intending to place the
escorts in fear of bodily harm or death.” Griepp, 2018 WL 3518527, at *14. The
district court further concluded that “[a]fter years sharing the sidewalk,” the
escorts were familiar with both Thomas and the context of his speech, “and were
not genuinely fearful” of him or intimidated by his words. Id. at *35. The
district court concluded that none of the challenged statements, considered in
context, constituted true threats for which Thomas could be held liable. Id. at *36.
Notwithstanding its lengthy discussion of “true threats,” the majority does
not explain how it is better positioned than the district court, which had the benefit
of hearing from both Thomas and the escorts, to assess whether true threats were
ever made. Moreover, in its analysis of the First Amendment’s “true threat”
doctrine, the majority again runs afoul of Operation Rescue. There, we considered
several statements made to clinic staff, including “killing babies is no different
than killing doctors,” “[y]ou won't be laughing when the bomb goes off,” and
“[y]ou’re next, I hope you’re next, you’re next.” 273 F.3d at 196 & n.5. We
expressed skepticism that any such statements amounted to “true threats.” Id. at

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196. But compared to the statements in Operation Rescue, the statements here are
more abstract, passive, and impersonal—in short, they are less threatening.18 Cf.
United States v. Turner, 720 F.3d 411, 423 & n.6 (2d Cir. 2013) (acknowledging that
“rigid adherence to the literal meaning of a communication without regard to its
reasonable connotations” is improper but declining to hold “that syntax is not a
relevant factor for consideration”).
The majority points to a “shooting at [a] Planned Parenthood” clinic in
Colorado “a few months prior” to some of Thomas’s statements to argue that, in
context, a true threat was made. Maj. Op. 69. But there is no evidence that
Thomas was aware of this context when he made these statements. And even if
he were, in Operation Rescue, unlike here, the speaker directly referenced a recent
18 The majority considers whether Thomas’s statements were “subjectively
frightening” to the escorts. Maj. Op. 70. But, as the majority acknowledges, the
relevant test for whether a statement constitutes a “true threat” is objective. See United
States v. Turner, 720 F.3d 411, 420 (2d Cir. 2013); Operation Rescue, 273 F.3d at 196.
Moreover, the district court determined as a matter of fact that the escorts were not afraid.
And while there is some testimony in the record to the effect that escorts felt the
statements were ‘threatening and scary,’” Maj. Op. 70 (citing App’x 1203, 2263), there is
also escort testimony indicating that they “were not genuinely fearful of [the protesters]
or intimidated by their words.” Griepp, 2018 WL 3518527, at *35; see, e.g., App’x 1377 (Q:
“No one ever told you that they feared Scott Fitchett was going to harm them, did they?”
A: ”No.”). Moreover, the majority does not challenge the district court’s determination
that the testimony of the escorts cannot be taken at face value, and was both “biased and
unreliable” in significant respects.

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violent incident in the same community, and yet we concluded that the statement
was an “expression of a political opinion . . . entitled to First Amendment
protection.” 273 F.3d at 196–97. There, the defendant told a clinic doctor that
“killing babies is no different than killing doctors” in the immediate aftermath of
the murder of a New York doctor who performed abortions, and in the same
judicial district in which the allegedly threatening statements were made. Id. at
196 & n.5. But we concluded that this form of expression “went to the core of [the
speaker’s] protest message” and, in context, was not a threat. Id. at 196–97. The
majority’s analysis is thus at odds with Operation Rescue and with its recognition
that the “dynamic public exchange safeguarded by the First Amendment” requires
a wide scope of protection, and even for speech that many might deplore. Id. at
195–96.
Nor do the out-of-circuit cases cited by the majority help its position. In
each of those cases, the speaker had a pre-existing relationship with or purposely
employed similar tactics to someone who had actually committed acts of violence.
See United States v. Dillard, 795 F.3d 1191, 1201, 1203 (10th Cir. 2015) (noting the
“Defendant’s publicized friendship with, and comments about, the man who had
murdered the last doctor to provide abortions in [Wichita]”); Planned Parenthood of

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the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1062, 1066,
1085 (9th Cir. 2002) (defendant circulated posters in the same style as posters that
preceded murder of physicians pictured); United States v. Hart, 212 F.3d 1067, 1072
(8th Cir. 2000) (defendant parked trucks near a clinic in a manner “similar[] to the
well-known events of the Oklahoma City bombing”). Not so here. Thomas
never indicated that he had, nor were the escorts aware of any, relationship with
the Colorado Planned Parenthood shooter. And the district court found that “an
ordinary, reasonable escort familiar with the preaching and other conduct of
Thomas” would not have interpreted his statements as threatening at all. Griepp,
2018 WL 3518527, at *36.
The majority likewise errs in rejecting the district court’s careful assessment
of Thomas’s statement to a patient that the escorts “won’t be here when you leave.”
Id. at *38. As the district court explained, Thomas regularly preached “that
Choices does not care about babies; they just want money.”19 Id.; see also id. at *14
n.8 (referring to a recording of Thomas stating, “Please ma’am, they don’t care
19 The district court observed, moreover, after viewing the videotapes, that
Thomas does not deliver this message in a threatening manner—that “[t]here is nothing
about his demeanor that suggests that he is a threat to the patients[.]” Griepp, 2018 WL
3518527, at *38.

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about your children. They don’t care about children inside of this place. What
they care about is the dollars.”); App’x 1842. In the context of statements such as,
“Please ma’am, they don’t care about your children. . . . What they care about is
the dollars,” the meaning of the challenged statement becomes clear: Thomas was
not threatening a patient with violence in the absence of escorts, but indicating that
the escorts and Clinic staff would not be there for the patients in the long run, in
contrast to Thomas and his church who “are here . . . [and] willing to assist in any
way.” Griepp, 2018 WL 3518527, at *14 n.9. Based on this context, the district
court permissibly concluded that Thomas’s statement did not amount to a true
threat. See id. at *14 (“Thomas’s statement could be understood to communicate
that, once a patient’s procedure is over and her bill is paid, the escorts will no
longer be concerned with her well-being.”). The majority has no basis for
rejecting this sound and well-reasoned determination.
IV. Irreparable Harm
As already noted, the district court determined that three violations of the
relevant statutes did occur. Because they did not specifically deny it during their
testimony, the district court found that both Musco and Anne Kaminsky, on a
single occasion, violated the City Act by falsely telling a patient and her mother

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that the Clinic was closed.20 The court also determined that B. George, as he
admitted, “physically obstruct[ed] patient access to Choices on three occasions by
engaging in a deliberate ‘slow walk’ in front of patients” so as to gain additional
time to speak with them. Griepp, 2018 WL 3518527, at *22. But the district court
further determined that even assuming the OAG would likely succeed on the
merits as to these three alleged violations, the OAG failed to demonstrate that
these violations were likely to recur. The majority sets aside this conclusion.
Again, I disagree.
Where “a district court contemplates imposing an injunction based in part
on a past history of illegal behavior by protestors, it should be vigilant to ensure
that the current protests threaten to maintain whatever coercive influence resulted
from the original illegal conduct.” Operation Rescue, 273 F.3d at 200. Put another
way, “a district court’s findings should definitively confirm that injunctive relief
is necessitated by current and ongoing plans or activities.” Id. Otherwise, we
20 The district court noted that this charge relied entirely on the testimony of Troyd
Asmus, a security guard at Choices with “significant credibility problems.” Griepp, 2018
WL 3518527, at * 13. The court deemed it odd that Asmus, who claimed to be within
earshot, would not have informed the patient that the facility was, in fact, open. But
“since no evidence [was] offered to rebut” this claim over the course of the fourteen-day
hearing, the district court deemed it substantiated. Id. at *19.

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have cautioned, courts end up using past conduct “to place a permanent burden
on the exercise of First Amendment rights.” Id. And we have also said it is the
district court, not this Court, that “’is best qualified to form a judgment as to the
likelihood of a repetition of the offense.’” United States v. Diapulse Corp., 457 F.2d
25, 29 (2d Cir. 1972) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633
(1953)).
Here, the majority sets this precedent aside to substitute its own judgment
for that of the district court. Moreover, it completely misreads the two primary
precedents upon which it purports to rely: S.E.C. v. Manor Nursing Centers, Inc.,
458 F.2d 1082 (2d Cir. 1972), and Commodity Futures Trading Comm’n v. British
American Commodity Options Corp., 560 F.2d 135 (2d Cir. 1977).
In Manor Nursing Centers, we upheld a district court’s issuance of a permanent
injunction, noting that a likelihood of future violations may be inferred from past
unlawful conduct, where the district court had found the violations to be “willful,
blatant, and often completely outrageous.” 458 F.2d at 1100–01. Conversely,
here, the district court denied the motion for a preliminary injunction. The abuse
of discretion standard thus weighs against overturning the judgment.
Moreover, in Manor Nursing Centers, the district court “doubt[ed] the veracity of

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appellants’ assurances” that they would not continue to violate federal securities
laws. Id. at 1101. The district court made the exact opposite finding here—that
there was simply no “‘reasonable likelihood that the wrong will be repeated.’”
Griepp, 2018 WL 3518527, at *42 (quoting City of New York v. Golden Feather Smoke
Shop, Inc., 597 F.3d 155, 120–21 (2d Cir. 2010)).
British American is also off the mark. There, the Commodity Futures
Trading Commission (“CFTC”) instituted proceedings after it “found ‘good cause’
to deny registration” to British American, a commodity trading advisor. British
Am., 560 F.2d at 141. Nevertheless, British American continued to operate. Id.
We explained that an injunction was appropriate because “Congress ha[d]
specifically found that the activities of commodity trading advisors affect
substantially the transactions on commodity markets” and, to regulate those
markets, had delegated authority to the CFTC to register advisors “upon proper
application and scrutiny.” Id. at 142. Because the CFTC had already found
good cause to deny British American registration, any subsequent advising was
presumptively impermissible. Yet British American continued to “offer
commodity trading advice right up to the day of the hearing in the district court”—
that is, after the CFTC denied its application. Id.

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Conversely, there was no prior determination here that the protesters were
violating the law. Instead, the district court found, considering the record as a
whole, that these protestors endeavored not to do so. Griepp, 2018 WL 3518527,
at *33. The majority sees an abuse of discretion in the district court’s conclusion
that B. George was unlikely to violate the statutes again.21 But B. George walked
slowly in front of patients approaching the Clinic entrance only a few times over
years of protest. See App’x 1869–70 (testimony of Pat Musco) (noting only “two
instances” of B. George slow walking “[b]ack in the middle of 2017”); App’x 2187
(Supplemental Declaration of B. George) (stating that [o]n a handful of occasions
in early 2017” he engaged in conduct that “could be seen as blocking or slowing
the patients’ access into the clinic”). Two of those occasions were in February
2017; the other was on June 3, 2017, weeks before this lawsuit was filed. Griepp,
21 As to Musco and Kaminsky, the conduct at issue allegedly violated the City Act,
not FACE and the State Act. My conclusion that the OAG may not enforce the City Act
means that this conduct, even assuming violation of that Act, provides no basis for an
injunction. That said, I see no abuse of discretion in the district court’s determination
that a one-time violation over many years of Saturday morning protest, and occurring at
least ten months prior to the beginning of litigation, was not reasonably likely to recur—
instead, that it is unlikely “that either Musco or Kaminsky, having been warned about
the impropriety of [their conduct], will tell another patient that the Clinic is closed when
it is open.” Griepp, 2018 WL 3518527, at *48; see Operation Rescue, 273 F.3d at 200 (“[A]
district court’s findings should definitively confirm that injunctive relief is necessitated
by current and ongoing plans or activities.”).

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2018 WL 3518527, at *42; see also App’x 1869–70. Moreover, as the district court
found, B. George ceased this conduct when Griepp, the leader of the Church at the
Rock protestors, learned of it and told him to do so. Griepp, 2018 WL 3518527, at
*42. And B. George provided the district court with a sworn declaration that he
would not engage in the conduct again. Id. at *42; see also App’x 2187. Notably,
we decide this case in 2021, with no indication before this Court that B. George has
reengaged in this conduct since almost four years prior.
This case thus bears no resemblance to the precedent on which the majority
purports to rely. B. George rarely violated the statute and, once he was put on
notice that his conduct might be unlawful, he ceased it entirely. Such facts amply
support the district court’s conclusion that preliminary relief was unnecessary and
would only burden the exercise of First Amendment rights. See Operation Rescue,
273 F.3d at 200; cf. Robert Stigwood Grp. Ltd. v. Hurwitz, 462 F.2d 910, 912–13 (2d Cir.
1972) (“’[N]o reasonable expectation that the wrong will be repeated’” where it
consisted in “a ‘one-shot’ series of performances which long ago ha[d] come and
gone [i.e., six months before the appeal was decided] . . . and there [was] no
evidence whatsoever . . .that [the defendant] has planned or is planning other
productions anywhere.” (quoting W.T. Grant Co., 345 U.S. at 633)). We said in

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Operation Rescue that an injunction in this sensitive First Amendment context
should issue when the district court’s findings “definitively confirm that
injunctive relief is necessitated by current and ongoing plans and activities.” 273
F.3d at 200. The district court did not abuse its discretion in concluding that this
is simply not the case with regard to the regular Saturday morning protests at
Choices.
* * *
We warned in Operation Rescue that courts must not “characterize[]
legitimate protest activities as illegal interference with clinic access.” 273 F.3d at
195. We noted that special care must be taken in this context, lest the erroneous
application of statutes by courts “impinge legitimate First Amendment activity.”
Id. Some issues invariably inspire great passion. But dearly held beliefs are no
excuse for torturing statutory language, abandoning precedent, and jettisoning
carefully reasoned and amply supported district court findings, particularly when
First Amendment freedoms are at stake. Proper consideration of the law, the
facts, and most critically, the deferential abuse of discretion standard, requires a
different result than the one reached by the majority here. Accordingly, except

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as specifically noted herein with regard to those few points on which we agree, I
respectfully dissent.

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