Hulinsky v. County of Westchester County Department of Public Safety

Background

Oksana Hulinsky and Regina Molinelli sued the County of Westchester. The plaintiffs later added White Plains 40 Days for Life and 40 Days for Life. They asserted three claims under 42 U.S.C. § 1983, a statute allowing claims against state or local actors for violating federal rights: violation of the First Amendment rights to free speech and assembly; vagueness under the Fourteenth Amendment’s Due Process Clause; and violation of the First Amendment right to free exercise of religion.

The plaintiffs moved for a preliminary injunction, which is an order issued before trial to prevent enforcement of a challenged law while the case continues. They sought to stop the County from enforcing Sections 425.31(a), (c), (d), (e), (f), and (h) of Chapter 425 of the Westchester County Laws. The challenged provisions address physical obstruction or blocking, following and harassing people within 25 feet of a reproductive health care facility, conduct causing a reasonable fear of physical harm, and interference with facility operations.

The plaintiffs described their intended activity as “sidewalk counseling”: peacefully approaching people entering or leaving facilities, having short and quiet conversations at a normal conversational distance about alternatives to abortion, and offering literature. They alleged that the law made this activity too risky and that they had suspended it pending court intervention.

Standing

The court first considered standing, meaning the requirement that a plaintiff show a concrete injury caused by the challenged conduct that the court can remedy. The court held that 40 Days for Life lacked organizational standing because the record did not show that Chapter 425 perceptibly impaired its activities. The court also held that White Plains 40 Days for Life lacked organizational standing because the organization continued to organize and promote vigils and had not shown that the law canceled or eliminated its activities. The organizations also could not assert their members’ rights through representative standing for these § 1983 claims.

The court held that Hulinsky and Molinelli lacked standing to seek an injunction against Sections 425.31(a), (e), (d), (f), and (h). Their stated plan involved peaceful conversations and did not arguably involve physical obstruction, threats of physical harm, or interference with facility operations. The court held that their conduct could arguably be characterized as harassment under Section 425.31(c), which prohibits knowingly following and harassing another person within 25 feet of a reproductive health care facility. Because Chapter 425 was recent, the County had not disclaimed enforcement, and the statute allowed civil or criminal enforcement, the court found a credible threat of prosecution as to that provision.

Likelihood of Success on the Claims

The court considered the individual plaintiffs’ likelihood of success on their constitutional claims regarding Section 425.31(c). It noted that the plaintiffs’ preliminary-injunction motion did not address their religious free-exercise claim and therefore did not establish a likelihood of success on that claim.

As to free speech, the court held that Section 425.31(c) was content-neutral because it regulated knowingly following and harassing people in a specified location regardless of what the speaker said or what a leaflet contained. The court also rejected the overbreadth argument, reasoning that the provision regulated conduct and that the plaintiffs had not shown that its effect on other speakers would differ from its effect on their own sidewalk counseling.

The court rejected the vagueness challenge. It concluded that the statutory language concerning an “implied request to cease” could be understood in light of New York harassment law and related case law. It also concluded that the terms “alarm or seriously annoy” were not vague, particularly because the statute required knowing conduct and used language already addressed in New York law. The court therefore held that the plaintiffs had not shown a likelihood of success on either their free-speech or due-process vagueness claims.

Irreparable Harm and Public Interest

The court held that the plaintiffs had not shown likely irreparable harm. Their claim that Chapter 425 had stopped their advocacy was not supported by specific facts, and the County submitted photographs and videos showing anti-abortion protestors and counselors continuing similar activities after the law’s enactment. The court also rejected the argument that a First Amendment injury automatically established irreparable harm because the plaintiffs had not shown that Section 425.31(c) violated the First Amendment.

The court further held that the public interest did not favor an injunction. It recognized the County’s significant interest in protecting people entering health care facilities from unwanted encounters, confrontations, and assaults, and concluded that an injunction would not serve the public interest where the plaintiffs had not shown a likely constitutional violation.

Disposition

The court denied the plaintiffs’ motion for a preliminary injunction. It held that 40 Days for Life and White Plains 40 Days for Life lacked standing; that Hulinsky and Molinelli lacked pre-enforcement standing to challenge Sections 425.31(a), (e), (d), (f), and (h); and that, as to Section 425.31(c), the individual plaintiffs had standing but failed to establish likelihood of success on the merits, irreparable harm, and that the public interest favored relief. The Clerk was directed to terminate the motion and the two organizational plaintiffs as parties.