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Activist To Appeal FACE Act

Activist to Appeal FACE Act

Conviction gives man a chance to fight 'unconstitutional' FACE Act

The conviction of a man who rammed a delivery van into a Houston Planned Parenthood clinic in 2003 is just another step in his legal challenge to a federal law protecting clinics from violence.

Frank Lafayette Bird Jr., 64, intends to appeal his conviction on one count of violating the Freedom of Access to Clinic Entrances Act, Public Defender Brent Newton told U.S. District Judge David Hittner.

Hittner found Bird guilty last week during a 20-minute hearing and scheduled his sentencing for Jan. 27. He faces up to three years in prison and a $250,000 fine for damaging or destroying clinic property.

"I would hope that he would get punished to the full extent of the law," said Peter Durkin, chief executive officer of Planned Parenthood of Houston and Southeast Texas.

Neither Newton nor the U.S. Attorney's Office would comment about the case.

Durkin, who called the incident "domestic terrorism," was at his desk on March 7, 2003, when Bird plowed the van through the Fannin clinic's glass doors.

Bird already had spent a year in federal prison for throwing a bottle at the windshield of a doctor's rental car in 1994 at another clinic and had been arrested on a misdemeanor charge for sitting in the doorway of a clinic.

Newton convinced U.S. District Judge Kenneth Hoyt to dismiss the charge against Bird in August 2003 on the grounds that the passage of the FACE Act exceeded Congress's authority under the Commerce Clause of the Constitution.

The Commerce Clause, which gives Congress the right to regulate commerce across interstate borders, is the basis for much national legislation.

The government appealed Hoyt's decision and a three-judge panel of the 5th U.S. Circuit Court of Appeals reversed Hoyt in February and sent the case back to him. The full 5th Circuit upheld the panel's decision and the U.S. Supreme Court refused to hear Bird's appeal.

Hoyt recused himself, saying he disagreed with the 5th Circuit and couldn't follow its ruling, and the case was transferred to Hittner.

Court documents show that Bird doesn't challenge the facts presented by prosecutors, but argues that the law is unconstitutional. The guilty verdict gives him an opportunity to appeal and challenge the FACE Act.

Constitutional scholar Charles "Rocky" Rhodes, professor at South Texas College of Law, gives Bird little chance of overturning the FACE Act in light of recent Supreme Court decisions.

"There is a very minuscule chance that they would be successful in appealing this on the Commerce Clause grounds," Rhodes said, pointing to the Supreme Court's decision in June in Gonzales v. Raich. In that case, the Supreme Court said the Commerce Clause gave Congress the right to regulate the cultivation of marijuana for medical use.

He said two new justices on the Supreme Court appointed by President Bush wouldn't make a difference because the justices they are replacing, William Rehnquist and Sandra Day O'Connor, both dissented in Gonzales v. Raich.


http://www.chron.com/cs/CDA/ss
istory.mpl/metropolitan/3453887

Posted by Editor at November 11, 2005 05:14 AM