Milwaukee or was that all nonviolence such as putting cement in
cars and attempting to cement up the entrances of the clinic?
Ms. Harris. I maybe should defer to my colleague here.
Mr. Patrick. I think the answer to that is no. What Jo Ann Har-
ris is referring to is the focus of the task force. What I was refer-
ring to earlier is the focus of the law in general. And the focus of
the law in general, as you know, is to address force, threats of force
or physical obstruction. And the Milwaukee case is a physical ob-
struction case, a massive obstruction, as a matter of fact, where the
clinic was closed down entirely for several hours.
Mr. Sensenbrknnkr. Well, it strikes me that one side of the Jus-
tice Department is speaking about acts of violence, which all people
condemn, and the other side of the Justice Department is talking
about prosecutions for nonviolent obstructive acts, which I will con-
cede is a part of the FACE law. I don't think it should be there,
but in fact it is the law that has been passed by the Congress and
signed by the President.
Now, this gets me back to the point, and that is where is the line
drawn on what the extent of Federal law enforcement activity is for
the protection of the agents who are engaged in that? Should there
be a change of administration at some time in the future which
takes the opposite position on this question, and what assurance
can the Justice Department give to those prolifers who are express-
ing their first amendment rights in a nonviolent and
nonobstructive manner that the full force of the Justice Depart-
ment is not going to come down on them?
Mr. Patrick. Well, I can tell you, and I will tell the American
people, that the agents of the Justice Department today are not in
some dragnet that draws into it all prolife supporters. We do not
care whether you are prolife or prochoice. This is about law en-
And the law says â€” and, as you indicated, like it or not, it ad-
dresses force, threats of force or physical obstructions. We will pur-
sue physical obstructions, and I think in many cases these are the
Mr. SCHUMER. I would be on top of you if you did not try physical
obstruction cases because, although those may be the harder cases,
that was the original purpose of the law.
Second, let me ask a question to clarify what Mr. Sensenbrenner
has been asking, which is a fine line of questioning, as far as I am
concerned. I have no problem with it.
Has there ever been, since the FACE law passed, an investiga-
tion of somebody who protested â€” even leaving an investigation
open, even the first little gear of investigative apparatus turning â€”
when there was no allegation of either violence or obstruction?
Mr. Patrick. Not to my knowledge. No.
Ms. Harris. No.
Mr. Schumer. OK, I yield back.
Mr. Sensenbkenner. Now, following up on your answer, Mr.
Patrick, are you also prosecuting other political groups for block-
ades, such as Act-Up?
Mr. Patrick. I am not aware of any Federal statute or any â€” ex-
cuse me, any obligation in the FACE, if that is what you mean.
Mr. Sensenbkenner. Yes, there is. Senator Hatch and I were
successful in including into the FACE law the same penalties for
interrupting religious services that are contained for blockading
abortion clinics. Are you going after Act-Up as well?
Mr. Patrick. We are not going after any group, first of all. I will
tell you that. I am not awareâ€” well, let me put it this way. As you
know, I cannot comment on whether there is or is not an open in-
vestigation. There is not today a prosecution, an open prosecution,
a filed prosecution, involving blockades to religious
Mr. Sensenbrenner. I would remind you in April, Mr. Patrick,
right before the FACE law was enacted, there were members of the
U.S. Civil Rights Commission who wrote to Attornev General Reno
expressing "deep concern about the continuing evidence of disrup-
tion by private individuals of religious activity and the vandalism
of religious property." And in that letter specifically was mentioned
radical homosexual groups like Act-Up who have disrupted services
being conducted in Roman Catholic churches. Is the Justice De-
partment doing anything about that?
Mr. Patrick. As I said a moment ago, Congressman, I can and
will not comment on whether or not there are active investigations,
but you are quite correct that there are no open filed prosecutions
to date that I know of
Mr. Sensenbrenner. How about labor union disputes which are
in violation of the Hobbs Act?
Mr. Patrick. I cannot speak to that, Congressman.
Mr. Sensenbrenner. Well
Mr. ScHUMER. That comes in yet another Department of the Jus-
Mr. SENSENBRENNEii. Yes, and all 90,000 employees. Perhaps we
should get the Attorney General herself here because she is in
charge of all of those departments and maybe she can answer it.
You know, I guess the point that I am making is it appears there
are different strokes for different folks, and the Justice Department
appears to be interested in enforcing the law in a selective manner.
I am waiting for the first prosecution to take place when Act-Up
or another group like that starts pelting Cardinal O'Connor with
condoms as ne is trying to preach a sermon in St. Patrick's cathe-
I yield back the balance of my time.
Mr. ScHUMER. Mr. Edwards.
Mr. Edwards. Thank you, Mr. Chairman.
I think the testimony of the Justice Department, the ATF, is
really rather first class and comports with the intention of the sub-
committee and of Mr. Schumer, the author of the bill, when this
very important criminal law was enacted.
Mr. Sensenbrenner did get into an area that has always been of
concern to us, and I think your responses are excellent.
We have had unfortunate experiences in our oversight of the FBI
where individuals were investigated and damage done to their rep-
utations because they were allegedly connected or related to or
talked to someone who was suspected of criminal activity.
Arab- Americans were unnecessarily interviewed and harassed
during the Persian Gulf War, and I believe either Mr. Sensen-
brenner or Mr. Schumer mentioned CISPES, where a lot of people
were damaged who had no connection with criminal law, and data
banks were established that had no connection with criminal be-
havior. And the leading guidelines are the best protection for the
American citizen and for law enforcement and for the FBI that we
can have, and I wish it could be turned into a statute.
You are emphasizing correctly that you are going to be hard hit-
ting and are hard hitting in implementing this law; is that correct?
Ms. Harris. Yes.
Mr, Edwards. And, at the same time, issuing very strict instruc-
tions and overseeing the implementation of the law carefully so
that the broad brush that can injure legitimate first amendment
activities and freedom of association are not threatened. Is that
Mr. Patrick. Absolutely.
Ms. Harris. That is correct.
Mr. Edwards. I have no further questions.
Mr. Schumer. Thank you, Mr. Edwards. Mr. Schiff.
Mr. Schiff. Thank you, Mr. Chairman.
Mr. Chairman, I voted for this act all through the committee
process and on the House floor, and at this point I am trying to
figure out what the priorities within the Department of Justice are
in enforcing it. I have to say the entire Department of Justice, not
just one division or one task force. So I want to state this premise
and then ask the witnesses. Either of our Assistant Attorneys Gren-
eral or both are welcome to answer it.
It is possible, as the law is written, to violate this act either
through violence, which is obvious, or through nonviolent acts such
as civil disobedience. My question is, is there any priority in the
Justice Department that says that the priority of enforcement of
this act should concentrate on violent breakers of this act versus
nonviolent civil disobedience protestors?
Mr. Patrick. No, I would not say that the Justice Department
divides their priorities that way. I will tell you the way that mat-
ters are handled in full review now, if that would be helpful, Con-
Mr. Schiff. I think you answered my general question. The Jus-
tice Department does not set a priority that violence is more impor-
tant than nonviolence in enforcing this act.
Mr. Patrick. The Justice Department has expressed by creation
of the task force a particular concern about the violence, but that
is not to suggest that the nonviolent physical obstructions, signifi-
cant physical obstructions, and that part of our responsibility
under it to enforce the FACE Act, is not an interest and respon-
sibility in fact of the Department of Justice.
Mr. Schiff. Again, could you say, Mr. Patrick, how many
charges have been filed under the FACE Act?
Mr. Patrick. There have been two criminal charges filed so far.
Mr. Schiff. And one is in Florida and one is Milwaukee.
Mr. Patrick. That is correct.
Mr. SCHIFF. And the one in Florida involves a murder.
Mr. Patrick. That is right.
Mr. SCHLFF. And the one in Milwaukee â€” I think you answered
the question, but just to be sure â€” was there any violence or threat
of violence in the charge that was filed in Milwaukee?
Mr. Patrick. Not as I understand it, no. That was an obstruction
Mr. ScHLFT. So we only have two cases right now, but in 50 per-
cent of the cases, 50 percent of the two cases, the Justice Depart-
ment has filed a charge where there was violence and in the other
50 percent the Justice Department has filed a charge where there
was no violence.
Mr. Patrick. That is true. I think the statisticians would tell you
there is no statistical significance in that sampling.
Mr. ScHUMER. Good try, Steve.
Mr. SCHEFF. Well, I wonder if the statistics will be any different
when we get more cases.
I just want to say that I understand we are still dealing with ille-
gality. We are still dealing with illegality when people peacefully
blockade a clinic, but we are also talking about priorities.
In yesterday's hearing it was my understanding that many indi-
viduals with long, violent felony records might be in illegal posses-
sion of a firearm, but the U.S. attorneys just do not have the re-
sources to prosecute them for possession â€” illegal possession of a
firearm by a convicted felon. And now I am hearing the Justice De-
partment has found the resources to prosecute nonviolence which
would be a misdemeanor level, I think, offense.
Mr. ScHUMER. If the gentleman would yield.
Mr. ScHiFF. Yes.
Mr. ScHXJMER. There is a major difference, because FACE was in-
tended to be enacted when the State was unable or unwilling to
act. They are not supposed to do it everywhere. The State can han-
dle it. If there is a State or a locality where there is a moral pre-
disposition toward not arresting felons who are illegally in posses-
sion of guns, then maybe we will have to look into that. But it is
apples and oranges, with all due respect.
Mr. SCHIFF. I think not, Mr. Chairman, because I think priority
is based upon the same resources with the same U.S. attorneys.
But you have brought up the next point very well.
One reason I supported this act was testimony about certain ju-
risdictions being unwilling or unable to enforce their existing State
or local laws against illegal activity, either violent or nonviolent. So
I would like to turn back to our witnesses and to ask, in Pensacola,
FL, or in Milwaukee, WI, the two places where charges have been
filed under this act, was there either an unwillingness or an inabil-
ity of State and local law enforcement to enforce their respective
statutes, whether it was either against a violent act or against an
illegal nonviolent act?
Mr. Patrick. I can say in answer to that, Congressman, that we
took that into consideration among other factors.
In Milwaukee, I think there was a strong sense that if the Fed-
eral authority did not step forward there was less likelihood of a
law enforcement response to that problem.
Mr. ScHlFF. Would you â€” I am sorry. I interrupted you. Pardon
Mr. Patrick. In Pensacola, in fact, the State authorities have
been very interested in responding, and we have been cooperating
with the State authorities in that case.
What you need to understand is that the Department of Justice
has made a choice about how to handle these cases, and the num-
ber of matters that have been filed as prosecutions does not reflect
the number of matters under active investigation.
We could run into court in every case or in a lot of cases and zap
the resources we have devoted to other things, to say nothing of the
resources we have devoted to this, and make a great public splash
about the enforcement of this act. We have chosen, instead, to try
to do this in an orderly way using the factors that we consider for
all Federal prosecutions very much aware of the first amendment
concerns and to determine, in the first instance, whether the crimi-
nal activity is connected, one activity to the next, and to investigate
that. And to the extent that we conclude, at least as a preliminary
matter that it is not, and in the civil context it is significant to
move, and that is what we will continue to do and I hope to do bet-
Mr. Sensenbrknner. Will the gentleman yield?
Mr. ScHiFK. Yes, I will yield to the ranking member.
Mr. Sensenijrknnkr. I regret the insinuation you have made,
Mr. Patrick, that law enforcement in Milwaukee is not adequately
dealing with either obstruction or violence in front of abortion clin-
ics. The fact is there has been a longstanding division of labor be-
tween the county district attorney's office that prosecutes State
charges and the city attorney's charges that prosecutes municipal
ordinance violations, including disorderly conduct.
When there is violence involved, it is a State charge that goes
through the DA's office; and when there is not violence involved,
in a disorderly conduct or failure to obey a lawful order by a police
officer, then it gets prosecuted through the city attorney's offices.
And the city attorney has literally obtained convictions of thou-
sands of disorderly conduct arrest charges as a result of the mas-
sive demonstrations that have occurred before abortion clinics in
You know, if the Justice Department went ahead, as you said it
was going ahead, and filed the nonviolent FACE charges in Mil-
waukee because of the lack of adequate law enforcement activity
and prosecutorial activity, that fact is simply not in evidence. I
want to publicly defend both the district attorney in Milwaukee
County, Michael McCann, and the city attorney of the city of Mil-
waukee, both of whom are examples, for doing their jobs in this
Mr. Patrick. Congressman, if that is what you heard, I
misspoke. What I thought I was saying, what I will repeat, is that
we took that among other factors into consideration and that there
was no one factor that was outcome determinative of the decision
to proceed in Milwaukee. I am sorry. I did not intend any insult
to the authorities in Milwaukee.
Mr. ScHUMEii. Just yielding for one further minute.
Mr. SCHIFK. Yes, Mr. Chairman.
Mr. ScHUMER. I understood the gentleman to say that if the city
attorney was prosecuting, at most there would be a fine. Is that
Mr. Patrick. I understood that earlier.
Mr. Sensenbrennkr. That is the municipal ordinance violation,
but that is where no violence has occurred.
Mr. ScHUMER. With a blockade it would be, at most, a fine, and
FACE clearly goes beyond that. There is no adequate local law giv-
ing the setup. It is not impugning their job and what they are
doing, but it is saying, at least in terms of this Federal right, that
the Congress and the law of the land states that there could well
be a higher penalty and that would be a discretion of the Justice
Department to decide to bring. I see nothing wrong with that.
Mr. Sensenbrennkr. If the gentleman from New Mexico would
Mr. SCHIFF. I yield.
Mr. Sensenbrenner. This arrangement was made originallv
upon Mr. McCann's first election as district attorney in 1969, which
was before we had any problems relative to abortion clinic block-
ades or things like that. It was done in the midst of the antiwar
in Vietnam protest. And Milwaukee is a strongly prolabor to\vn,
and it was decided that the best way to depoliticize dealing with
picket line violence, which has occurred, unfortunately, in my com-
munity, was to have that type of division of labor. And it worked
all the way up to the time, apparently, that the decision was made
by the Justice Department to file FACE charges.
I yield back to the gentleman from New Mexico.
Mr. Patrick. I don't know whether you are asking for a response
or not at this point.
Mr. ScHlFF. Well, reclaiming my time, the point I have been get-
ting at is the point the chairman stated a couple of minutes ago,
and that is the main thrust behind making these already criminal
activities Federal violations of law was the concept that local gov-
ernment cannot or would not enforce local laws. Arid yet in the two
examples you have given you make no allegation that the local au-
thorities either in Milwaukee or in Pensacola, FL, could not or
would not enforce their laws.
So I think it raises a real question about whv Federal resources
have fallen in either of those situations where there is already ade-
quate prosecution. That is the issue.
Mr. Patrick. That is the question. Whether there is adequate
prosecution and how relative to the Federal interest that sizes up.
But that is but one of the considerations.
Mr. ScHlFF. Well, in Pensacola â€” explain then this Pensacola, FL.
Is there anything derelict in the prosecution you know of in the Mr.
Mr. Patrick. Congressman, I have not tried to indicate and I
hope you have not been trying to find in what I have said any im-
pugning of any of the local authorities in any of the places where
we are active under the FACE statute.
Mr. SCHIPT. I interrupt for this reason. That was the issue that
passed this bill. One second â€” I will yield back.
Mr. Patrick. Excuse me.
Mr. SCHIFF. That is all right. I am giving you the fioor back.
The issue that passed this bill was the idea that local law en-
forcement, either by not acting either because they didn't want to
or didn't have the resources, was permitting crime to occur. You
are now saying in the priorities of the resources of the Justice De-
partment that is only one factor in terms of what the Justice De-
partment looks at in filing these charges. So, clearly, the Justice
Department added factors the Congress did not add, I don't think,
when it passed this bill. Can you tell us what those factors are?
Do you have a written guideline?
Mr. Patrick. I can repeat the factors that I have laid out, and
they are entirely consistent with the language of the statute and
with the practice of the Justice Department with respect to enforce-
ment of all the statutes that we are responsible for.
They have to do with the strength of the evidence in a given situ-
ation, with the competing State and Federal interests. Whether, for
example, bringing a Federal prosecution if it is a criminal matter
in some way compromises the ability of the State under State law
to follow with a State prosecution. They have to do with where and
how the relative severity of the punishment may lie, and our own
consideration of our resources, to say nothing of the first amend-
ment concerns that we have been talking about.
Those are factors that we consider whenever we enforce a Fed-
eral statute of any kind anywhere. And the fact is that the Con-
gress' interest in the passing of the statute is one of a number of
factors that we consider but is not necessarily outcome determina-
tive Congressman. We are following, I believe, the traditions and
the procedures of the Department of Justice.
Mr. SCHIFF. I think Ms. Harris wants to join in.
Ms. Harris. You are right.
I have one other factor that I think is important for you to focus
on, which really does not impugn the local authorities at all, but
to the extent that the public interest and the attention to a particu-
larly hideous violent act occurs I believe it is in the public interest
for a quick and speedy trial of that matter, and there are times
when the Federal courts can move much quicker than the local
It is simply just another factor, but I wanted to underline it for
Mr. SCHIFF. Well, Mr. Chairman, let me simply conclude by say-
ing I certainly agree, as we all would agree, that those individuals
who commit violent acts should be prosecuted. Speaking for myself,
I think those who commit nonviolent civil disobedient acts, such as
blockades, also should be prosecuted. They certainly understand
what they are doing it when they are doing it, even if they wish
to make a point by it.
To me, the issue is the expenditure of Federal resources. And in
this particular act, which was always promoted in this Congress as
an act we needed to pass because of law enforcement's lack of re-
sponse, I think that there is a misdirection of priorities to apply the
statute in this situation where there is an adequate law enforce-
And I would conclude with â€” this was also overshadowed by the
issue of violence against abortion clinics â€” I believe that violent acts
should get a priority over nonviolent acts, but there has been no
showing of such a priority in the cases that have been filed so far.
I yield back, Mr. Chairman. Thank you.
Mr. SCHUMEK. Thank you, Mr. Schiff.
Let me just make a couple of points. I have one question, and
then I will conclude because I know you have been here a long
First, certainly one of the things that motivated the statute was
that the localities were not enforcing the law â€” you read the stat-
ute. The Justice Department is interpreting this absolutely cor-
rectly. There is no language in the statute that says the Federal
Government cannot get involved, must not get involved unless they
can prove by any standard that local law enforcement is not getting
I would argue in the Milwaukee case that a fine is not enough.
What we found, especially in jurisdictions â€” and I don't know how
it is in Milwaukee â€” where either the prosecutor or the judge had
strong moral feelings that were prolife, they would slap a fine of
$5, and they would do it again and again and again, and the clinic
would be effectively closed and people would be deprived of their
In the Florida case, there is a different standard and it is hard
to generalize, as we say, from two cases statistically as you point
out, Mr. Patrick, and that is that this was a heinous crime. This
was a crime that cried out for, I believe, national justice. Both the
Governor of the State and the attorney general in the State urged
Federal prosecution. Am I correct with that?
Mr. Patrick. That is correct.
Mr. Schijmp:r. The local authorities, believed that it was appro-
priate. I do not think there was anything wrong there.
I have one other question, and then we will conclude, because I
know you have to go and we have to vote. The other thing that I
was concerned about is that there have been only two criminal
prosecutions, and we are getting it from both sides I guess.
Mr. Patrick. I know.
Mr. SCHUMER. We are used to that. You are used to it, too.
There have only been two criminal prosecutions. As I understand
it, there have not been any civil rights actions under FACE. Do you
expect that, as part of the Department's enforcement of FACE,
such actions will be filed in the future?
Mr. Patrick. Yes, I am confident of that, and I know we have
to do better in that respect.
Mr. SCHUMKR. OK. Let me then conclude with this.
I think you are trying hard to do this. I think you can do better
and do a little more. And I would urge that you approach this very
important law in that regard and with that spirit in mind. OK?
I thank you both for coming, and I want to thank Mr. Brown as
well, who stayed out of the fray here. You lucky man, Mr. Brown.
Mr. Schiff. I notice he did not volunteer any answers.
Mr. ScHUMER. A smart man, Mr. Brown, too.
I do think we are lucky to have such dedicated servants as Ms.
Harris and Mr. Patrick in charge of this law, and I think the initial
kinks and the initial problems will be worked out. I hope to see ac-
tive Federal involvement in making the right to choose as protected