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SLAPP Shot

The ACLU jumps into Warren Hern's battle with Ken Scott.

Anti-abortion protester Ken Scott has until April 29 to convince a U.S. District Court judge why his lawsuit against Boulder abortion doctor Warren Hern shouldn't be dismissed. And even if Scott manages to do that, he'll find himself battling the American Civil Liberties Union, which has taken Hern's side in the long-running battle.

In the meantime, Scott, who was convicted of stalking and harassing his second wife ("Uncivil Wars," February 13), has married for the third time. This time it's to a San Diego anti-abortion protester.

Scott filed a lawsuit in November asking for $10 million from Hern, who owns the Boulder Abortion Clinic, in connection with two court actions filed against him in Boulder County in December 1995.

The first action was filed by a Boulder County prosecutor seeking to commit Scott for a psychiatric examination on the grounds that he was gravely disabled or a danger to himself and others. The court agreed, and after being transported to the Colorado Mental Health Institute in Fort Logan, Scott was initially diagnosed as manic depressive and dangerous and was involuntarily recommitted for ninety days. He had been in and out of mental institutions several times previously.

Scott was released after 41 days following a Christian-radio interview that resulted in the mental-health center's being deluged with telephone calls on his behalf. At the time, a psychiatrist backtracked on his original evaluation and determined that Scott was no longer a threat.

In the second court action, Hern obtained a restraining order against Scott. The anti-abortion protester, who appeared several times a week at Hern's clinic and was known for his belligerence, was prohibited from coming within a mile of Hern.

Both actions were supported by sworn statements from Hern. He and his security consultant, Michael Newell, a specialist in "stalker suppression," were increasingly concerned that Scott was growing more dangerous.

In November 1995 Scott had admitted to a police officer that he had been trying to locate Hern's remote Gilpin County residence "to warn him that he doesn't have much time left." Then, on December 10, 1995, Scott located the residence, precipitating the court actions.

Scott's lawsuit contends that Hern, Newell, the mental-health-institute doctors and the Boulder prosecutor and police conspired to shut him up and prevent him from attending the court hearing on Hern's request for the restraining order. Additionally, it argues that a report Hern originally drafted for the U.S. Justice Department, which was investigating the possibility of a conspiracy within the anti-abortion movement to murder doctors, was slanted and misleading about Scott. The report was used in the Boulder County court actions.

Hern and Newell filed motions to have the lawsuit dismissed. And last week, U.S. District Court Judge Zita Weinshienk, "in view of the supporting evidence," ordered Scott and his attorney to file a response by April 29 or have the lawsuit dropped.

Scott's attorney, John Winston, says neither he nor his client is surprised that the ACLU would side with Hern. "From what I've seen," says Winston, "the ACLU likes to intervene when the real cause is atheism--in this case, aligning themselves with somebody who performs abortions."

In a twist to the case, the ACLU contends that it's Hern, not Scott, whose First Amendment rights of free speech have been attacked.

"Dr. Hern got sued for speaking out," ACLU legal director Mark Silverstein was quoted as saying last week. "He was in fear for his life, and he provided detailed documentation to the government in good faith and pursuant to Colorado statutes, to explain the basis for his fear. Scott's lawsuit seeks to punish Dr. Hern for providing this information to the government."

The ACLU labeled Scott's action a SLAPP suit--the acronym for a "strategic lawsuit against public participation." Lori Potter, an ACLU volunteer attorney who submitted the "friend of the court" brief on behalf of the ACLU and Hern, says that "in many cases, the real purpose of such SLAPP suits is not to achieve results in the courtroom, but to silence critics, who suddenly find themselves hauled into court and strapped with the burden and tremendous expenses of defending themselves in a lawsuit."

Newell compares the lawsuit to "legalized stalking." It is no different, he says, from Scott's history of stalking his ex-wife and abortion-clinic workers and doctors.

Hern says he's "extremely grateful" to the ACLU for stepping in, adding, "It's alarming to be sued for $10 million by someone who has been stalking you."

Neither the restraining order nor the lawsuit has slowed Scott's anti-abortion activities, though he has not recently been seen in the vicinity of Hern's clinic. Instead, he has been protesting at other clinics and was active at the State Capitol earlier this year.

At one point Scott incensed legislators by slipping a flier showing a dismembered fetus into their mailboxes. He was seen at the time in the company of a woman who sources say was Jo Ann Kreipel, 44, a well-known anti-abortion activist in the San Diego area.

Scott and Kreipel applied for a Colorado marriage license in February. There's no word on whether they plan to have children. If so, Kreipel may want to keep an eye on Scott's bank account--he's $60,000 in arrears on child-support payments owed to his last wife.

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