Northern Colorado Gazette

DOJ claims Ken Scott doesn’t have Fifth Amendment rights against self-incrimination

by Jack Minor –

An abortion protestor is Colorado that is being prosecuted for passing out flyers outside of a Planned Parenthood clinic in Denver, has received legal help from a law firm that specializes in pro-life cases.

Kenneth Scott has been defending the rights of the unborn for years outside of Denver Planned Parenthood abortion clinics.

Ken Scott and his wife, Jo, have a history with Planned Parenthood.  In 2008, Jo was convicted of violating the state’s bubble law after a pair of Planned Parenthood employees, pretending to be patients, recorded Jo Scott moving within eight feet of them. The bubble law creates an eight foot floating bubble around anyone within 100 feet of the entrance to an abortion facility.

In order to avoid violating the state’s “bubble law”, Ken Scott was passing out flyers outside the clinic on a public sidewalk to anyone that wanted to speak with him.

In June, the Department of Justice charged Scott with violating the Freedom of Access to Clinic Entrances Act (FACE) alleging that he forcibly blocked vehicles from entering the facility and obstructed other vehicles from entering the facility while the entrance to a clinic was blocked by a car as someone inside the vehicle talked to Scott.

The civil complaint alleges that Scott routinely stood in the driveway of Planned Parenthood of the Rocky Mountains in Denver and prohibited vehicles from entering the facility. It goes on to claim that Scott is creating a “physical obstruction and unreasonable hazard” for cars entering the facility.

While the law specifies that Scott cannot protest within 100 feet of the clinic entrance, the DOJ wants the distance expanded to include being within 25 feet of the entrance to the clinic. The Justice department has assigned five prosecutors to handle the case.

The Chicago-based Thomas More Society has recently announced it would be assisting Scott with his defense. Peter Breen, executive director and general counsel for the society, told the Gazette that the government’s case turns free speech on its head. “Scott is not being charged with violating any of the bubble law requirements.” 

Breen went on to say that the video shows a completely different story than what is alleged in the government complaint.

“When I read the complaint it made it sound as if Scott was throwing himself in front of cars. It was nothing of the sort, when you watch the video he is standing on the side of the road and if people want to come over to talk and receive literature about abortion alternatives, they are free to do so. He is in no way blocking people from entering or exiting the facility.”

Breen said Scott’s offering the people literature which they are free to take or reject is no different than a person selling flowers on the side of a road or union workers picketing outside of a facility.

Breen went on to point out that the exchange between Scott and the driver was a purely voluntary exchange between two people. “If a car that has a woman inside who is considering having an abortion, if that woman wants to talk to someone about alternatives available to her why would we stop that woman from seeking the information she wants? No one is forcing these vehicles to pull over, lower their window and talk to Ken Scott, it is a completely voluntary exchange.”

“Abortion is supposed to be a choice and a choice pre-supposes two options. If a woman decides to not have an abortion based on a one minute conversation with a complete stranger then that tells you something about her choice. Obviously she needed some information on the pro-life side that she was able to get.”

Breen acknowledged there was a history between Scott and PPRM but says if this lawsuit is successful it would have a chilling effect on all peaceful protests outside of abortion clinics around the nation.

“If the Attorney General is successful in Denver against Ken Scott, it will shut down the free flow of information outside of abortion facilities across the country. The information offered is desired, no one is forcing those drivers to pull over and get the information.”

Breen went on to say it was significant that the five federal prosecutors from Washington D.C. were filing a civil suit against Scott where the burden of proof is much lower than in a criminal case. “I believe they are trying to use the more liberal rules of evidence in order to collect the evidence to prosecute Ken criminally.”

Breen went on to say the federal prosecutors are attempting to claim that Scott does not have a Fifth Amendment right against self-incrimination. “The United States is asserting that they can order Scott to undergo discovery, even though he has a Fifth Amendment right against self-incrimination.”

According to Breen, even if a car was unable to pass the other car for a few seconds that does not rise to the level of a federal crime. “Even if another car cannot get into the facility while a car in front of them is speaking to someone on the sidewalk for 30 seconds to get a word of encouragement, is that the end of the world? Is that truly a federal crime?  That’s not obstruction.”

Breen also said if the government truly felt the incident was obstruction, they should charge the driver of the car that was blocking the road instead of Scott who was standing on the sidewalk and not physically blocking anything.

The case has been put on a fast track and a preliminary injunction hearing is scheduled for Jan. 26. The Thomas More Society is arguing that the lawsuit is not just meritless, but frivolous.

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