Free Speech

No Heckler's Veto: Court Reverses $1.5M Nuisance Verdict Against Abortion Clinic, Which Was Chiefly Based on Actions of Protesters and Arsonists

A new decision from the Georgia Court of Appeals.

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In McBrayer v. Governors Ridge Office Park Ass'n, Inc., an office park and several of the owners within the park sued an abortion provider for nuisance, and were awarded over $1.17 million plus over $311,000 in attorney fees. What was the alleged nuisance?

[1.] McBrayer's practice attracted protestors to the public street in front of the office park, some of whom harassed employees or invitees of the businesses in the office park. Protestors could be limited to a handful or up to hundreds, and some of them displayed placards with images of terminated fetuses. Building owners testified that the presence of the protestors disrupted their businesses and made it difficult to sell or rent space in their buildings. {[T]he Governors Ridge brief [describes this as] the "discomforting, annoying, and offensive" nature of the abortion services provided by McBrayer's practice which brought unwanted attention to the office park and distress to the other owners.}

[2.] At one time in 2012, a suspicious fire was started at McBrayer's building. Governors Ridge was also aware of violence targeted against other clinics which provided abortion services, one of which was also owned by McBrayer. {[This led to] the fear that violence would befall the office park.}

[3.] In 1998, Governors Ridge also complained about loitering in the common area of the park as well as several occasions of bodily "voiding" in the common area, which Governors Ridge attributed to patients and guests of McBrayer….

[A.] The court rejected theories 1 and 2, and remanded for a new trial as to 3. Here's what strikes me as the core policy principle behind the decision:

McBrayer's practice is likely to displease some in the community and attract protestors wherever it is located. If we were to hold that a legally-operated abortion clinic cannot even operate in a commercial office park zoned for medical practices without constituting a nuisance we would be, in effect, holding that such clinics cannot properly operate anywhere.

As amicus curie correctly point out, such a holding could be used to expose a broad array of legal businesses and institutions to nuisance liability due to the fact that some find them controversial and some will protest their very existence. Both legal protestors and criminals have caused disruption around a multitude of business and institutions, such as gun shops, fur retailers, Chick-Fil-A restaurants, police departments, synagogues, statehouses, Black churches, adult entertainment establishments, and mosques, to name a few. Under the common law, property ownership in Georgia does not guarantee only ideologically-aligned neighbors whose business practices will cause no upset or attract no controversy, and we will not hold otherwise….

Governors Ridge also alleges that the business was a nuisance because it caused the other owners to live in fear for their safety…. [But a]s for the [2012] fire at McBrayer's business, even assuming it resulted from a targeted attack against McBrayer despite the lack of evidence as to its origin, a single occurrence is insufficient to create a nuisance.

With regard to the fear the owners of buildings in Governors Ridge felt as a result of acts of violence perpetrated against other abortion clinics, Governors Ridge has pointed to no law which would authorize a finding of nuisance liability for one property owner based on something that happened somewhere else. We decline to extend nuisance liability in such a manner.

To hold otherwise would have dangerous implications. For instance, numerous houses of worship of different religious denominations have fallen victim to hate crimes. By way of example, the fact that one synagogue has been a victim of anti-Semitic violence does not result in other synagogues in other locations having nuisance liability to their neighbors due to a generalized fear of anti-Semitic violence in the neighborhood.

This is what we argued in the amicus brief my UCLA Amicus Brief Clinic filed in support of reversal; I was also pleased that our brief made an appearance at oral argument, with Judge Pipkin asking the plaintiffs' lawyer, "I'm assuming you've read the amicus brief," and saying (at around 25:25),

I don't know how an abortion clinic is somehow different … than synagogues or mosques or churches or gun stores or bookstores or fur stores or political organizations or police departments or food stores that sell certain meat products. I can't help but think that if we were to affirm this decision, there's a very slippery slope where this would lead to a lot of problems for a lot of lawful businesses in our community.

Many thanks to our invaluable pro bono local counsel Darren Summerville, to the amici,

  • Profs. Thomas C. Arthur (Emory), Michael J. Broyde (Emory), Nicholas Johnson (Fordham), Thomas E. Kadri (Georgia), Hillel Y. Levin (Georgia), Dean Lyrissa Lidsky (Missouri), Clare Norins (Georgia), David F. Partlett (Emory), Jonathan Peters (Georgia), Michael Perry (Emory), Glenn Harlan Reynolds (Tennessee), Ani B. Satz (Emory), Julie Seaman (Emory), Eric Segall (Georgia State), Fred O. Smith (Emory), Alexander Volokh (Emory), Camilla E. Watson (Georgia), Sonja R. West (Georgia), Barbara Woodhouse (Emory), and me (UCLA), plus
  • the Firearms Policy Coalition and
  • the Georgia First Amendment Foundation,

to UCLA law student Madison Way for her help with the brief, and, as always, to Scott & Cyan Banister, whose support makes our UCLA Amicus Brief Clinic possible.

[B.] Here's the doctrinal background, which confirms that there should be no nuisance liability here:

"A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man." "Under Georgia law, in order to be held liable for nuisance, ownership of land by the tortfeasor is not an element, but control is; the essential element of nuisance is control over the cause of the harm. The tortfeasor must be either the cause or a concurrent cause of the creation, continuance, or maintenance of the nuisance."

Georgia law recognizes "[t]hat which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance. Thus, where the act is lawful in itself, it becomes a nuisance only when conducted in an illegal manner to the hurt, inconvenience or damage of another." "That the business itself is offensive to others, or that property in the neighborhood of such business is necessarily adversely affected thereby, or that persons of fastidious taste would prefer its removal, is not sufficient." …

Moreover, there was no evidence presented at trial that McBrayer provided abortion services in a way which unnecessarily intruded on his neighbors, such that a modification to his abortion practice could have addressed Governors Ridge's complaints; rather, the fact that he provided the service at all is what formed the basis of the claim.

Governors Ridge correctly points out that Georgia law has recognized that legally operated businesses situated in inappropriate locations can become a nuisance…. These cases, however, have involved the placement of commercial businesses which are inconsistent with a residential community in residential areas. See McGowan v. May (Ga. 1938) (funeral home in a residential neighborhood); Benton v. Pittard (Ga. 1944) (venereal disease clinic in residential neighborhood); Poultryland Inc. v. Anderson (Ga. 1946) (poultry plant in a neighborhood which was both commercial and residential). Unlike those cases, McBrayer's medical practice is not located in the wrong place; it is located in a commercial office park, zoned for medical practices, and which contains other medical practices….

[C.] As to the alleged loitering, littering, and bodily voiding, the court seemed skeptical, but allowed a new trial on the subject; my guess is that even if there was enough evidence of such misbehavior, it would justify far less than $1.17 million in damages:

Governors Ridge presented documents and testimony accusing the invitees of McBrayer's practice of loitering, littering, urinating, and defecating in the common areas of the park. The entirety of the evidence of these occurrences consisted of a letter from 1998 and testimony which did not quantify the frequency of these occurrences, but assumed they were perpetrated by McBrayer's patients and the companions of those patients. Specifically, the "loitering" was only ever defined as the companions of patients of McBrayer's practice who were waiting in their cars while the patients received treatment [which is not loitering under Georgia law].

To the extent invitees of the clinic were littering, urinating, or defecating in common areas, that conduct could form the basis for nuisance liability if properly supported. No evidence at trial, beyond mere speculation, actually connected this behavior to anyone affiliated with McBrayer's practice, however, nor did it establish the frequency with which these issues happened. Nonetheless, as stated above, Governors Ridge may be able to support this claim with additional evidence on retrial.

[D.] The court also rejected the argument that McBrayer's clinic breached the no-nuisance covenants attached to the properties in the park. The covenants forbade, among other things, uses that "could cause disorderly, unsightly, or unkempt conditions, or which could cause embarrassment, discomfort, annoyance, or nuisance to the occupants of other Parcels," but the court concluded this didn't forbid McBrayer's use:

In considering the behavior which can be curtailed and sanctioned via the Declaration, we keep in mind the general rule "that the owner of land has the right to use it for any lawful purpose. Restrictions upon an owner's use of land must be clearly established and must be strictly construed. Moreover, any doubt concerning restrictions on use of land will be construed in favor of the grantee." Douglas v. Wages (Ga. 1999). With this guiding principle in mind, the Georgia Supreme Court analyzed a similar restrictive covenant and found it to be "too vague, indefinite and uncertain for enforcement in a court of equity by injunction, except in so far as these words may be included within the definition of a nuisance."… The logic of Douglas is sound, and we see no reason why the rule should be different in a case seeking to enforce a vague covenant to obtain money damages. A vague nuisance covenant, such as this one, will only be enforced to permit recovery of money damages to the extent the conduct at issue is included within the definition of a nuisance under common law.

For the reasons discussed in Division 1 (a) (1), the nature of the business being controversial to some and attracting protests does not fit "within the definition of a nuisance." For the reasons discussed in Division 1 (a) (2), neither does the fear of violence it inspired in other owners at Governors Ridge per the evidence introduced at trial.

NEXT: Man-Bites-Dog at D Magazine

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  1. This is a nice rational decision. The nuisance and the fear were caused by the protesters, not by the business. So, sue the protesters. The lawyer should sue the harmer.

    In the case of defamation, sue the employer that fired the police officer after seeing nude pictures of her. In the case of the opioid epidemic, sue the Chinese makers of fentanyl, not the maker of pain medications. After 100 people step around the oil spill on the supermarket floor, sue yourself for your carelessness when you take a header and break a hip.

    1. “The lawyer should sue the harmer.”

      The lawyer should sue whoever it is the client wishes to sue, after advising them on the likely outcome(s).

      1. No; lawyers should not bring frivolous lawsuits just because the client wishes them to.

        1. So you want to take away decision-making authority from your clients? Not hiring you.

          1. Its clearly asinine to suggest that a lawyer should file a case that they know lacks merit. I’m pretty sure that it is grounds for sanctions. Your judgment is clearly flawed in this area; I certainly wouldn’t hire you.

            1. “Its clearly asinine to suggest that a lawyer should file a case that they know lacks merit.”

              It should be filed appropriately. If it lacks merit, tell the client that, and bill them for the 1 or 2 tenths of an hour it took to tell them so.

              ” I’m pretty sure that it is grounds for sanctions.”

              ” I certainly wouldn’t hire you.”

              I’m not available to you, so that won’t be an issue.

              You might be surprised at how difficult it is to win sanctions for frivolous filings.

          2. I wouldn’t take you as a client; people who think they’re smarter than they are make lousy clients.

            And FTR, clients do not have decision-making authority to order me to file something frivolous any more than they have decision-making authority to order me to assassinate the other parties in the case. It would be an ethical violation to file a frivolous lawsuit; “my client wanted me to” would not be a defense.

            1. ” clients do not have decision-making authority to order me to file something frivolous any more than they have decision-making authority to order me to assassinate the other parties in the case.”

              Go back and read what I actually wrote. Hint: Nothing about assassinating people, or filing frivolous claims.

            2. “I wouldn’t take you as a client; people who think they’re smarter than they are make lousy clients.”

              Yeah, people who are smart enough not to hire you probably DO make lousy clients for you.

              1. At the very least, I bet they don’t pay when you send them a bill.

            3. “Not hiring you”
              “I wouldn’t take you as a client”

              Ah, the old “you can’t fire me, I quit!” If I’m not hiring you, you don’t have a choice to take me as a client (or not). It’s just not an option for you to pick from.

  2. It is always heartening to read about situations where the law sorta works like it’s supposed to. Here, at the trial court level, a jury heard the case and ruled with its heart. At appeal, the judges ruled with their (collective) head, applied the actual law, and therefore reversed.
    EV, nice job for you and your UCLA team, for its part in reversing an otherwise-dangerous precedent.
    [p.s. I don’t know this Cyan Banister. Given her wonderful name; one hopes she works in Interior Design. A cyan banister sounds *fabulous* and very Caribbean.]

    1. Madison Way is pretty good too.

  3. What does the “Firearms Policy Coalition” have to do with abortion? It look like a 2nd Amendment group.

    I happen to own a townhouse near Governors Ridge and drive past it frequently. I see protestors in front of the buildings from time to time but haven’t ventured into the office park to see what else was going one.

    1. There have been disturbances around gun shops. They don’t want people to be able to drive out gun shops by protesting them then having a friend sue.

  4. Prof. Volokh, since you are in the weeds with legal implications of local zoning laws, could you post a legal analysis of the latest trend in “sanctuary cities,” which is cities are declaring themselves “sanctuaries for the unborn.” I presume this means that they won’t allow abortion clinics, among other things.

    Thanks.

    1. What, exactly, happens if a clinic that performs abortions should set up shop in such a “sanctuary for the unborn” jurisdiction? Does the city council join the protesters in picketing the site, or do they just stay home and masturbate?

  5. 1) Steal base by declaring by fiat that abortuaries are legitimate businesses providing medical services

    2) Wax indignant about how public-nuisance suits can be used to harass innocent, legal businesses

    3) Profit

    1. Cal Cetin: What are the unstated subjects of those sentences (i.e., the people or organizations that supposedly steal base, wax indignant, and profit)? Might they be quite different from each other?

      1. Different people, but alas, it comes to the same thing in the end.

        One can imagine, let us say, an amicus asking the court not to equate abortuaries with legitimate businesses but to go as far as the Supreme Court permits to close these facilities down.

        I recognize the concept of “accepting a proposition for the purposes of argument only.” I presume you are presuming this – accepting the court’s premise that these places are legitimate businesses – and then use this as a jumping off point to protect some businesses which *are* legitimate.

        In this mindset, you could replace an abortuary with a blank, as in “____, a legimate business, is being harassed,” etc. And be genuinely baffled that the fact it’s an abortion “business” excites so much comment, given the principle involved. Such a distraction from the true issues!

        But as the comment below this one indicates, the movement to legitimize and normalize abortion businesses is so strong that it’s a pity to encourage it. How much better to say, “these are not legitimate businesses and should not form a precedent for the treatment of legitimate businesses.”

        1. I’m actually referencing what used to be a popular joke:

          https://www.youtube.com/watch?v=tO5sxLapAts

          I’m suggesting that just as the connection between underpants and profit is unspecified, the connection between abortuaries and legitimate businesses is also unspecified.

          1. What is an abortuary? Something similar to an abortion clinic, I take it, yes? Is it any place that provides an abortion in addition to many other services (eg, Planned Parenthood)? Or, only a place that does nothing but abortions?

            1. Did you know – the Egyptian Brotherhood spends most of its time giving free meals to the poor? Killing people in terrorist attacks is only a small part of its activities!

              1. Did you know– the US Republican Party occasionally does useful things, when they can take time away from their busy schedule of limiting the rights of US citizens and residents.

            2. “What is an abortuary?”

              Why, that’s someone’s basement, where other people go to think about abortions and quietly masturbate.

    2. Abortion clinics *are* legitimate businesses providing medical services. That you disapprove doesn’t change that.

      1. My disapproval doesn’t change the nature of the business. The nature of the business does have some effect on my approval or disapproval.

        1. I could switch tomorrow to calling abortion clinics medical facilities, or magical unicorn factories, and that wouldn’t change their nature.

          1. Which you declare by fiat.

            1. No more than you.

              1. Indeed!

                Given such an unknowable, seems like the fiat should be limited to being by and about each individual themselves, according to their own conscience. A choice, if you will.

                1. What’s unknowable?

                  Whether those who are aborted belong to the human species, or some other species?

                  Whether those aborted start out alive, then get killed?

                  1. Say, do you know who kills the most unborn babies in all of North America? Did you “God”? Because the correct answer is “spontaneous miscarriage”, which is an act of God. Why don’t you go picket His place of business?

                    1. God permits humans to die? Well then, it’s obvious that human beings, as true imitators of God, should go off and kill as many fellow-humans as possible!

                      /sarc

                    2. OK, so you’re unclear on the difference between “causes” and “permits”… any other glaring deficiencies in comprehension you’d like to disclose?

                  2. Species? What does that have to do with anything. Maybe you think that’s relevant, but that’s just moving your fiat around.

                    You’ve tacitly agreed with the pro-choice position as soon as you admitted your declaration was as much by fiat as any other at your 4:28 pm post.

                    1. “certain species of property”….it’s an allusion to a euphemism for a slave that the South would use. Remember, species also means “type”. Since slavery was legal and all, it must be “legitimate” following the logic put forth in this thread.

                    2. This was mean to be a response to James below. Thanks.

                    3. “You’ve tacitly agreed with the pro-choice position as soon as you admitted your declaration was as much by fiat as any other at your 4:28 pm post.”

                      No, I said it was “no more” arbitrary than others. I didn’t say it was just as. If you’re going to pick nits, be more careful what you’re summarizing.

                      You think it’s arbitrary to oppose killing living members of the human species.

                    4. “No, I said it was “no more” arbitrary than others. I didn’t say it was just as. If you’re going to pick nits, be more careful what you’re summarizing.”

                      If you’re going to complain about somebody picking nits, first make sure that what you’re complaining about actually is a nit. “No more” and “just as” aren’t different. “Less than” is the same as “not greater than or equal to”.

                    5. ” Since slavery was legal and all, it must be “legitimate” following the logic put forth in this thread.”

                      You seem to be having trouble keeping your verb tenses straight.

                      Slavery WAS legal, therefore it must HAVE BEEN “legitimate”.
                      Slavery IS NOT NOW legal, therefore it MUST NOT BE “legitimate”.

          2. “I could switch tomorrow to calling abortion clinics medical facilities, or magical unicorn factories, and that wouldn’t change their nature.”

            Which is to say, that of being a legitimate business.

            1. You could say that they were even a certain species of property.

              1. You could, if you thought it made you sound smarter.

                1. Businesses are a form of property. Not as much of a “gotcha” as you seem to think.

      2. They are legitimTe under a certain body of law, rather than as an absolute property. A different body of law might declare them illegal businesses. The recent abortion case taken up by the Supreme Court suggests, as a realistic possibility, that the entirety of the abortion issue might go up for grabs again, and the law on this issue might change.

        That said, Courts, at least inferior courts, are obligated to follow the law as it is, and not as individual judges might wish it to be. This includes both their legality and their classification for zoning purposes.

        1. ” A different body of law might declare them illegal businesses.”

          So move to someplace that has the laws the way you’d want them, with government officials deciding what medical procedures you can and can’t have.

    3. The question to ask about an abortion, any abortion, is always “what race?” That should guide your approval or disapproval.

      1. abortions are pretty much limited to the human race, although some species (lions, for example) do sometimes practice retroactive abortion, AKA infanticide.

  6. On the loitering, littering, urination, etc. theory of nuisance, why did McBrayer ask for a new trial rather than asking to have the judgment thrown out entitely? Ordinarily, if the plaintiff doesn’t present enough evidence to establish a theory, they lose, rather than getting a new trial giving them a 2nd attempt to prove it. If Governor’s Ridge spent their evidence-presenting time trying to substantiate invalid theories, that’s normally their problem.

    Why did Macbray settle for less and ask for a new trial rather than a complete reversal of the whole case?

    1. Here’s the court’s explanation; not clear whether this was a tactical decision or an error:

      At the outset, we note that McBrayer did not move to dismiss the claims against him, nor did he move for a directed verdict in the trial court. Accordingly, McBrayer does not seek, and he is not entitled to, judgment as a matter of law on any of his enumerations. Instead, he is only entitled to a new trial to be conducted subject to the holdings contained in this opinion. Aldworth Co. v. England, 281 Ga. 197, 199 (2) (637 SE2d 198) (2006) (“For the reasons that follow, we conclude that OCGA § 5-6-36 (a) should be interpreted to permit a party to obtain only a new trial on appeal if []he prevails on a claim that the evidence was insufficient to sustain the verdict, but failed to move for a directed verdict on that ground at trial.”).

  7. So, McBrayer has to go through a new trial because his attorney was not prescient enough to motion for a directed verdict based on an appellate ruling that hadn’t happened yet at the end of the trial.

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