Judge Bars Enforcement of Funeral Protest Laws

Courthouse News Service/November 24, 2010

A federal judge in St. Louis barred a Missouri sheriff from arresting or threatening to arrest members of the Westboro Baptist Church and others for desecrating the American flag or protesting near funerals.

U.S. District Judge Jean Hamilton signed a consent decree Monday that blocks St. Francois County Sheriff Dan Bullock from enforcing state laws banning flag desecration and funeral protests.

Missouri passed the laws in response to the ramped up protests of the Westboro Baptist Church, whose members have picketed the funerals of soldiers killed in Afghanistan and Iraq.

Members of the Topeka, Kan.-based church believe military deaths are God's way of punishing the United States and the Army for tolerating homosexuality and other forms of immorality.

The American Civil Liberties Union filed suit on behalf of Westboro member Shirley Phelps-Roper, daughter of church founder Fred Phelps Sr., who argued that enforcement of the state's laws violated her and other protesters' First Amendment rights.

In the consent decree, Bullock and his employees agree not to "issue citations, make arrests, or file or pursue criminal charges" against anyone suspected of violating the state's bans on flag desecration and funeral protests.

"The parties agree, and it is ordered, that prior to initiating any citation or prosecution of plaintiff or any other person for picketing or any related expressive activity, including but not limited to singing, talking, chanting, using flags for expressive activities ... counsel for plaintiff and for defendant will confer and attempt to reach an amicable resolution concerning any allegedly unlawful speech or conduct or alleged violation of this consent decree," the agreement states.

Judge Hamilton also ordered Bullock to pay attorney's fees of $2,160, plus $773 for legal costs.

"All remaining claims asserted in this case are dismissed without prejudice," Hamilton wrote.

The ruling is the second in four months to reject or bar enforcement of the state's funeral protest laws. In August, U.S. District Judge Fernando Gaitan in Kansas City, Mo., struck down as unconstitutional the state's 2006 law restricting protesting at or near funerals.

Phelps-Roper had filed that lawsuit, too.

"Although plaintiff's speech may be repugnant to listeners, the court finds that, at a minimum, some of the plaintiff's speech is entitled to constitutional protection sufficient for plaintiff to maintain her constitutional claims," Gaitan wrote.

Numerous states have passed similar laws barring funeral protests. Westboro members claim they have staged more than 42,000 protests, including 500 outside of funerals.

The U.S. Supreme Court will take up the issue this fall, when it considers whether to reinstate a $5 million verdict for the father of a Marine killed in Iraq after Westboro members picketed his son's funeral. The 4th Circuit had overturned a Baltimore jury's $5 million award for Albert Snyder, whose son, Matthew, died in Iraq in 2006.

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