Days of Our Lies 2
Opening Statements contd..
Before
Superior Court of the State of California
2nd
June 2000
The Honorable Ina Levin Gyemant
Department 502
Project Inform, Petitioner, No. 301940
vs.
Todd Swindell, David Pasquarelli, Michael Bellefountaine, Ronnie Burk and
Andrea Lindsay, Defendants.
•
Reporter's transcript
Ronald J. Sinclair, CSR #1170
Appearances:
For the Petitioner:
Kathleen Fisher & Amy B. Lovell
Morrison & Foerster Attorneys at Law
425 Market Street San Francisco, CA 94105
For Respondents:
Michael Lee & Solomon Wollock
Minami, Lew & Tamaki Attorneys at Law
360 Post Street, 8th Floor San Francisco, CA 94118
MS. FISHER: Your Honor, let me first address some
organizational issues and some background. I know that the parties dumped
about a foot of papers on your Honor about five minutes before we came out
here so I would like to start by just introducing our client, the plaintiff,
and by telling you what they're about and also something about the San Francisco
AIDS Foundation which you have heard mentioned and was the recipient of
a prior injunction against some of these defendants -- and I will touch
briefly, as well, on the relationship of both organizations. ACT UP SF is
the organization that all of the defendants are affiliated with. Project
Inform has been in existence for about 15 years that I am aware of and it
is primarily dedicated to disseminating information about treatment to individuals
infected with HIV.
It believes more than anything, in an open exchange of information from
both people who are afflicted with HIV and AIDS and the people who provide
that kind of treatment -- doctors and that sort of thing. Their founder,
Martin Delaney, is an individual primarily targeted by these defendants,
their violent behavior and threats of violence. As the Founding Director
of that organization he is a very prominent -- really international -- spokesperson,
on the subject of AIDS treatments and particularly recently, as your honor
knows, on the efficacy or lack of efficacy of the new drugs that are used
to treat HIV disease.
The San Francisco AIDS Foundation is an organization
with an equally long standing in the community. It also is dedicated to
serving people who are afflicted with HIV disease and they do a lot of community
education, prevention, public policy advocacy and that sort of thing. Patricia
Christen, whose name you will hear, is the executive director of that organization.
The incident the plaintiffs here would like to keep out of evidence that
leads to the injunction on behalf of the AIDS Foundation and Ms. Christen
-- I should say the primary incident as there were a number of them involved
-- was their coming into a public meeting and dumping urine-soaked feces
and cat litter on Ms. Christen during a meeting.
Then there were a number of other, what my colleague
Mr. Lee would call, disruptions, but they were actually violent events that
occurred at meetings of the San Francisco AIDS Foundation. The reason that
is relevant is at least for a couple of reasons. One is that the threats
of violence directed to Ms. Christen and to the AIDS Foundation were again
generally coupled with threats to Mr. Delaney and therefore to Project Inform
as well. You will see a great deal of very graphic evidence and testimonial
evidence about the fact that San Francisco ACT UP has targeted in a very
violent and threatening way the real heroes of the movement against this
epidemic which include Ms. Christen and Mr. Delaney as well as a number
of prominent scientists, particularly in the San Francisco community.
The threats that were made against the
San Francisco AIDS Foundation generally were sent to and included Mr. Delaney
by name. The other reason that they're relevant and the issuance of that
injunction is relevant is that the incident on April 17th that really led
to the need for Project Inform to file these allegations for a TRO came
shortly after the termination of the injunction in favor of the AIDS Foundation
and Ms. Christen which included the stay-away order that is so objectionable
to the defendants and other protections to insure that the AIDS Foundation
could conduct it's work and it's forums and that that sort of thing which
was unimpeded by violence and threats of violence. It appears to Project
Inform that the injunction, the three year tenancy from 1996 to 1999, was
generally effective in restraining the individual defendants and others
associated with ACT UP SF from disrupting in the sense -- and I don't like
this distinction here between disruption, threats of violence and violence.
In this case there is no distinction but it appears that a three year long
injunction was effective in preventing largely, not completely, but largely
limiting the defendants here and SF ACT UP and its other people from threats
of violence and violence to Project Inform and Mr. Delaney as well as the
San Francisco AIDS Foundation and Ms. Christen.
That is not a surprise, you know, these organizations
and Ms. Christen and Mr. Delaney all work closely together. They're generally
trying to do the work that they do in a common cause and in an efficient
way. So the fact is that the San Francisco AIDS Foundation's injunction
had the practical effect of protecting Project Inform and Mr. Delaney as
well as SF ACT UP and Ms. Christen.
You know, I think it is a natural and logical conclusion
for the court to draw the reason, you know, technically and in accordance
with the legal standard that Mr. Lee articulated, most of which I don't
disagree with, is that it is relevant to the course of conduct. The reason
that some of these very violent incidents that were directed to Project
Inform and Mr. Delaney are, you will find in 1995 and earlier in 1996 is
because we had that three year period where there was not much going on
in terms of violence and threats of violence to Mr. Delaney and Project
Inform as well as, of course, the directly protected party, the SF AIDS
Foundation and Ms. Christen.
I promised to say something about ACT UP SF.
They're portrayed here as an organization that has different and theoretical
beliefs that HIV does not cause AIDS and that people with HIV don't need
to be treated and, in fact, are harmed by the drugs that have been so effective
in treating people with HIV and with AIDS. That is all true.
What is also true is that this is an organization
that for at least more than the last 5 years has been a splinter group of
the national ACT UP movement. It has been disavowed by it's founder, the
founder of ACT UP, Larry Kramer. It has been disavowed by the national network
of ACT UP organizations and not for their ideological beliefs, despite the
very colorful and theatrical activities that ACT UP nationally has been
known to engage in. The disagreement has been over violent tactics and threats
of violence that inhibit the flow of information and the choices that are
therefore available to people who are afflicted with HIV and at the bottom
that is what Project Inform is all about. It is an open exchange of information
so people can make their own choices, including the choice not to be treated
with drugs.
That is not the option that is available for them.
What they, in terms of what they object to about SF ACT UP, it is not their
message. They often employed their message, themselves. It is their message
that is in a way their own worst enemy because it is has been so discredited
in the scientific community but what Project Inform does have trouble with
is active and violent trespassing at meetings where they have audience members
who are effected by the HIV virus and AIDS, so that those people cannot
receive the information that is being employed from the speakers that are
invited to provide, who often are very well-known doctors as well as employees
of Project Inform and, of course, the audience members, given what I said
earlier about the importance of the exchange of information, are not free
in that environment to provide information about how the drugs are effecting
them or whether there are, you know, other sorts of options that they feel
are more available which is a critical part of what has been so successful
about prevention and treatment of HIV and AIDS in the San Francisco community.
Instead what happened, for example, on April 17th
is that at a forum sponsored by Project Inform the individual defendants
here burst into the meeting, pushed and shoved a security guard as well
as a Project Inform employee. Andrea Lindsay came into the meeting with
placards and signs, pushed over a table with food on it, pushed over a table
with slides for the meeting with that, shouted slogans such as "die faggot
die" and spit in the faces of Project Inform employees as well as others
during the course of what was supposed to be an informational exchange.
They also had with them, what appeared to the
Project Inform employees such as Mr. Delaney and other audience members,
to be rocks that they were throwing. Instead it turned out those were large
hard Vitamin C pills that they had huge bunches of in cargo pants they were
wearing.
My understanding is that the whole floor was covered
at Baha'i Center with those Vitamin C pills after they left. They stood
in a very close range to Mr. Delaney and others and hurled those Vitamin
C pills in their faces and, of course, completely disrupted the meeting
because of their violence and the threats of violence that they were shouting
at the audience. Most of them basically left because they were in fear.
You will hear Project Inform witnesses testify.
Mr. Oaks, who is the hotline coordinator, will testify that he was spat
on by Ms. Lindsay who is one of the defendants and that is a life threatening
problem for Mr. Oaks as well as for other people who have been living long
term with HIV disease and a compromised immune system now in fear that he
will, you know, have whatever disease that is born by Ms. Lindsay's spit.
You will hear from Mr. Delaney that he was in fear
for his eyes and also in fear for the other speakers would be hurt by the
pellets that were hurled. Ms. Judy Leahy will testify about being pushed
and shoved to the ground and had to go to the emergency room because her
knee was hurt. And as you heard earlier Mr. Lee wanted her medical records
which we will provide. I don't know what the point is, that Ms. Leahy wasn't
hurt enough? And so, therefore, it is a disruption, you know, rather than
an act of violence to have shoved her to the ground. I mean what is the
point. These are just flat and simple acts of violence. They're not protected
by the constitution. They're not protected by, you know, any of the speech
and expressive conduct principles that you find enunciated in their brief
or they refer to in their brief.
You heard some of it referred to today in these
allegations as performance art and stunts and other sorts of demonstrations.
They're not. They're just violent acts that were intended to be violent
and to disrupt the communication of the Project Inform message and as a
part of the cursing that is going on, that has to do with the fact that
this kind of -- this alternative pleading form of opposing the injunction
that, well, all right, then if the disruption is construed to have been
recent then it didn't take place in the work place, you know, that whole
-- all of this alternative pleading they have engaged in I must say is of
extreme concern to Project Inform and their employees.
What they're doing is kind of like when my daughter
was a teenager, the kind of negotiating now with the court, thank goodness,
but negotiating where these acts of violence can take place. It is all right
for them to take place at the Baha'i Center. It is okay for them to take
place in Vancouver or at the next International AIDS Conference in Africa
but this is not okay for it to take place down at Project Inform office
in the mission.
I mean, first of all, that is clearly not what the
working place violence statute was designed to protect, you know: was the
narrowest kind of violence they would have, you see, really only a co-worker
whose directly threatened, a single co-worker at their work place while
they are sitting at their desk is entitled to a prohibitory injunction from
your honor.
And, you know, frankly, that's just not what the statute
says and not what the cases say. Those are in our briefs. So we won't go
into them, but the Project Inform mission, what they do, is go out into
the community and have public forums such as the one at the Baha'i Center
on April 17th.
It wasn't work related? They were not at a company picnic.
They were at work and the SF ACT UP defendants broke in there and committed
their act of violence on these defendants while they're usually at work
and because they were working. When Mr. Lee talks about how this is about
competing philosophies, that worries me and I know Project Inform more than
anything else. These are ideologically motivated individuals. They think
AIDS drugs are killing people. They call my client's, the Project Inform
employees, murderers and AIDS whores and AIDS profiteers. They feel they
are saving lives if they deter or commit sufficient acts of violence to
send the message that our clients are try to convey, which is about treatment
options, is ideological motivated violence and the obsession that comes
with it, you know is perhaps the scariest kind of violence in our society
and it says that, you know, that it should be somehow excused or that it
is protected because they're ideologically motivated.
I think really that is the furthest thing from the truth
and it certainly is not the case law. The case law -- they try to come in
with this case is about pure speech. This wasn't about speech. This was
at best about a lot of violence and a lot of threats of violence, you know,
and some speech about their message intermixed with it. As you will see
from our brief what the cases say is that under those circumstances a prohibitory
injunction that issues with regard to further conduct including stay-away
orders which is their most -- the most objectionable part of what we seek
are fine and desirable because that is the only way to protect against this
behavior. And where you have this, you know, unfortunately in our society,
apparently a mixture of violence and threats of violence, you know, with
some speech, the incidental infringement on how they convey their message
is not constitutionally protected.
I should say also that Mr. Lee addressed whether
or not there have been threats or credible threats and one of the scariest
things about this group of 5 people is that even since Judge Chiantelli
issued the TRO at which, Mr. Lee by the way, was present and did make all
of his arguments including about the stay-away orders, the threats have
continued and he now describes these in his brief as "caustic remarks,"
you know, but they're not caustic remarks. They're remarks such as, you
know, "this is curtains for you" and "I will get you" and that sort of thing.
Things that are in writing and in letters to the editor and things that
are sent to Project Inform headquarters. You know, they're kind of dancing
around about whether they actually wrote the graffiti or not and I don't
know whether we will be able to prove that they did, but that is the least
of it in terms of the threats to our clients' personal safety and this business
of passing about whether it is Project Inform or whether it is about these
23 employees and whether each of the 23 would show credible threats to them
is absurd.
They targeted Project Inform and everyone who works
there because of the work they do. It is like people who work at abortion
clinics. It is what this case is all about all about. Andrew Rose, the Director
of Project Inform will testify about threats to the organization in their
paper. They as much admit when they say they don't -- were not threatening
a particular individual they were threatening the organization as a whole
or what is the organization, particularly, in the case of a non profit,
except the employees who work there. Those employee have reasonable and
credible fear that something is going to happen to them as a result of the
work that they do either at Project Inform or off premises when they're
at various forums in the community.
Now, finally, your Honor, in the first of the stay-away orders
and this interference with the rights of praying and the right to go to
gyms and do other things in the community, I have to stress that what these
folks are about is not praying and going to the gym and going out to restaurants.
They're about violating people's personal distance in order to threaten
them. You will hear testimony from Project Inform employees that they have
been stalked on their way home, that they have received mail messages and
e-mails and faxes, that they have ended up being in circles with people
dancing around them calling them AIDS murderers and given the previous truly
violent acts such as throwing things and the spitting of these individuals
when they come within that personal distance, you know, those stay-away
orders are a very important part of what Project Inform seeks to keep its
employees safe and having the feeling that they should have a zone of safety
around them from individuals who are stalking them. In using Mr. Lee's words,
harassing them, in the sense of credible threatening violence against them
and in some cases they fear for their children.
So your Honor will hear all of this when you hear
our witnesses testify. I will rely on the briefs for, you know, the more
technical definitions under the statute of work place and the constitutional
arguments that the defendants make. But my only caution here is to not be
misled by the ideological nature of ACT UP SF into thinking this is a disagreement
about political ideology. It's not. Project Inform certainly disagrees with
them about that but that is not what this case is about. What this case
is about is trying to make Project Inform and its employees feel safe enough
to do the work that they do and to get the message out that they want to
get out. Thank you your honor.
THE COURT: So we will recess for the day. Come back on Monday at
nine o'clock. We will get started with our first witness.
MR. LEE: Thank you, your Honor.
MS. FISHER: Thank you, your Honor.
Coming soon....
Episode #3
Where's the Beef??
