Moot Court Facts Leach v. Austin (funeral protests)

Transcription

1 Moot Court Facts Leach v. Austin (funeral protests) All of the following facts, whether found by the trial court or proven through depositions and affidavits, are accepted testimony in this case. These facts comprise the official record. This is summary testimony, so do not quote it directly. When using this information, you should cite to the individual testifying. You may also refer to the record when a specific cite is not required. Testimony of Terrance Paulino: Terrance Paulino has been the superintendent of Fort Inter National Cemetery, located in Linden Grove, Square State, since He is a civilian employee of the Department of the Army. Paulino testified that the cemetery averages 17 burials each day. Fort Inter is a relatively small operation Arlington performs over 27 funerals a day. Funerals are performed between the hours of 9:00 AM and 3:00 PM although the cemetery is open 365 days a year for visitations. On February 12, the day Capt. Constantine was buried, there were 13 burials: one WWII veteran, five Korean War veterans, one Vietnam War veteran, and five Iraq and Afghanistan War veterans in addition to Capt. Constantine s. The schedule for all funerals is posted on the cemetery s website as soon as arrangements are finalized, which is usually two to three days in advance of the funeral. Paulino testified that the cemetery is approximately 700 acres. It has only a decorative wrought iron fence about three feet high on the east side. Access to the cemetery is from the east via a private street, Cemetery Road. Capt. Constantine s internment was scheduled to follow the funeral service at the Catholic church on February 12, 2010, at 2:30PM. Testimony of Suzanne Nehl: Suzanne Nehl is the wife of Army Captain Casey Nehl. Suzanne is 32, and a public relations officer for the Steelyards Mall. Suzanne and Casey were married in 1999, and have two children: Jordan, 8, and Nicholas, 5. Suzanne testified that she was notified that her husband, Capt. Casey Nehl, 35, was killed by hostile small arms fire in Helmand province, Afghanistan, on January 3, Casey was assigned to the Longknife Squadron of the 3d Combat Division out of Fort Hood, Texas. Suzanne testified: He just loved to take chances. He loved motorcycles. He loved parachute jumping and he just loved the Army, basically. He was on his fourth tour. He kept signing up to keep his children safe. Suzanne testified that as soon as the notice of Casey s funeral went up on the Fort Inter website, the family began getting calls from military friends telling them that the Westboro Baptist Church had posted a notice on its website stating that its members were going to protest at the funeral. A friend, Suzanne cannot remember who, suggested that the family contact the Patriot Guard Riders to protect the family from the WBC protestors. Suzanne said she thinks her father made that call. Suzanne testified that the family drove from Our Lady of Perpetual Responsibility Catholic Church where there were maybe a dozen protestors to the cemetery where there were perhaps a dozen more protestors. She testified that there was a solid line of people standing along the cemetery fence blocking the Westboro Baptist Church people who were standing in the street. The people protecting the cemetery were a mix of Patriot Guard Riders and regular people. The church group was singing the Marine Corps anthem with WBC lyrics and she saw someone blow his nose with and stand on an American flag. Other members of the crowd carried signs reading "God Blew Up the Troops," "FAG Troops," Thank God for IEDs, and Pray for More Dead Soldiers.

2 Suzanne testified that it was distressing to drive through all those people to enter the cemetery but that the crowd was noisier and more stirred up when they tried to leave. She stated that, at the conclusion of the funeral, she went to the first limousine with her father and mother, Steven and Catherine Austin, and her two children. As they drove out of the cemetery, a man later identified as Johnny Leach pushed through the protectors and banged his sign on the hood, preventing the limo from leaving the cemetery. The sign read "Your Solider is in Hell. Suzanne testified that her father, Steve Austin, got out of the car and shoved Leach out of the way in order clear the street for the limousine. Leach then hit Austin with the sign he was carrying, and Austin threw a right hook that landed Leach on the ground. Suzanne testified that Leach was bleeding and seemed stunned for a minute, but quickly regained his feet and came at the car again. At this point in time, PGR member Richard Sharpe grabbed Leach and twisted his arm behind his back, holding him out of the way so that the family could leave the cemetery. Suzanne saw the military police arriving as she left in the limousine with her family. She testified that her daughter, Jordan, began screaming when the car was attacked and still has nightmares about it. Suzanne testified that her father, Steve Austin, is a retired Navy Captain and SEAL, and is known for his hairtrigger temper. Suzanne testified that during her husband s last visit home, Casey and her father taught Nicky to ride his bike without training wheels. Suzanne testified that on that occasion, "I don't know, Dad may have been even happier than Casey and Nicky were." Suzanne believes that Steve would do anything to protect his grandchildren. Suzanne also testified that the protestors were handing out a flyer at the funeral: several ended up in the limo after the funeral and she read the flyer the day after the funeral. The flyer had the Epic printed on it. She testified that she was horrified by the epic that she immediately vomited, and was unable to care for her children or go to work for close to a week after reading the Epic and continues to have trouble sleeping. She testified that her father scoured the house looking for any copies that might have made their way into the house after the funeral and funeral lunch, and that after learning that the Epic was published on the Internet, he blocked access to those sites so that his grandchildren would not read that filth. Testimony of Sean Marks: Sean Marks is a veteran of Dessert Storm, and a Ride Captain for the Square State Patriot Guard Riders. The Patriot Guard Riders was initially formed to shelter and protect the funerals from protesters from the Westboro Baptist Church. The Riders position themselves to physically shield the mourners from the protesters with their motorcade or by having members hold American flags, and by singing patriotic songs or by revving motorcycle engines. The PGR's stated mission is to attend the funeral services of fallen American heroes as invited guests of the family: 1. To show sincere respect for our fallen heroes, their families, and their communities. 2. To shield the mourning family and friends from interruptions created by any protestor or group of protestors. PGR pledges to "accomplish the latter through strictly legal and non-violent means." The PGR has about 137,000 members. Marks testified that the PGR must be invited to a funeral by a close family member. That is usually the spouse of the deceased. In this case, Suzanne Nehl or Steve Austin contacted Marks he spoke with each several times and asked that the PGR attend the funeral because the WBC had posted the demonstration on their website. Marks notified law enforcement that the PGR would attend Capt. Nehl s funeral. The Riders are all volunteers, and there is no attendance requirement. He testified that the PGR tries very hard to maintain the dignity of the funeral. For this mission, Marks estimates that there were close to 100 Riders present enough to line Cemetery Road on the west side with veterans standing shoulder to shoulder and holding American flags. He testified that a lot of other people turned out to protest the Westboro Baptist Church perhaps 200 in addition to the PGR and that group was undisciplined. Some members of the PGR had run-ins with the civilians. Some civilians even came in Zombie costumes. Marks testified that he had been standing on the west side of Cemetery Road right at the entrance to the cemetery Funeral Protests - page 2 December 3, 2012 Spring 2013

3 when he realized there was trouble. He saw Leach begin banging on the limousine, and saw some pushing and shoving between Leach and Steve Austin. Marks testified he immediately moved in and tried only to restrain Leach, eventually sitting on him to hold him down. The military police arrived shortly after the altercation began, and the Linden Grove police arrived about 10 minutes later. Both Leach and Marks were turned over to the Linden Grove Police and charged with violating Square State's "Peaceful Funeral" Act. A jury found Leach guilty but did not convict Marks. Testimony of Raymond Jorgenson: Raymond Jorgenson testified that he lives at 7856 North Cemetery Road, across from Fort Inter National Cemetery. He is 72 and a retired plumber. He has lived at his current residence since Jorgenson and his wife have about an acre of land, with a frontage of about 100' along Cemetery Road. The only access to their property is from Cemetery Road. There are 7' fences on the north, south, and east boundaries of the Jorgenson property. There are no vacant lots on Cemetery Road and all the structures are single-family dwellings. Jorgenson testified that Cemetery Road is a private street, without sidewalks, and that he and his neighbors do all the maintenance on the gravel road. Most of the people who live out here have blades on their pickups, and they do their own snow removal. They also put down new gravel every couple of years. Jorgenson testified his house is only about 10 or 12 feet from the road which is not usually a problem because the cemetery is just across the road and it s always nice and quiet out here. Jorgenson testified that on February 12, 2011, a crowd of people began gathering on the road in front of his house about noon. He estimated that at first there were 15 people with signs who sang and marched up and down the street, sometimes straying onto his lawn. This went on for a couple of hours with the crowd growing. He testified that the people on the west side of the street, along the cemetery fence stood in a solid line and were nice and respectful. But there were hundreds of others standing in the street, yelling at each other. At one point, the news van parked on his lawn and photographed the protestors. Jorgenson testified that he called the police about 2:00pm because the signs and the things the crowd was shouting were foul, and because he had tried to get everyone to stay off his lawn but had been ignored or shouted at. He said that it took the police a good hour to get out to his place, and that they probably only came because things was gettin real rough. When asked whether he felt he could leave his home, Jorgenson replied, Hell, no, I couldn t leave. And I had to get over to my sister s. She don t get around too good anymore. I take her groceries and stuff and check on her every day. I just wanted them folks gone. I was bout ready to get in my truck and run em down when them police finally showed up. Relevant statutes: Square State s Peaceful Funeral Act reads in pertinent part: SSRS Purpose. (1) The legislature of this state finds and declares that: (a) One of the fundamental reasons we humans organize ourselves into societies is to ritually assist in and recognize the grieving process; (b) Funeral picketing disrupts that fundamental grieving process; (c) Funeral picketing intentionally inflicts severe emotional distress on the mourners; and (d) Full opportunity exists under the terms and provisions of this section for the exercise of freedom of speech and other constitutional rights other than at and during the funeral. (2) The legislature, therefore, determines it is necessary to enact this section in order to: (a) Protect the privacy of the mourners during the funeral; and (b) Preserve a funeral-site atmosphere that enhances the grieving process. SSRS Definitions. As used in this part, unless the context otherwise requires: (1)"Funeral" means the ceremonies, rituals, processions, and memorial services held in connection with the burial, cremation or memorial of the dead, including the assembly and dispersal of the mourners. (2) "Funeral picketing" means a public demonstration at a funeral site during the funeral that is reasonably Funeral Protests - page 3 December 3, 2012 Spring 2013

4 calculated to inflict severe emotional distress on the mourners. (3) "Funeral site" means a church, synagogue, mosque, funeral home, mortuary, grave site, mausoleum, or other place where a funeral is being conducted. (4) Mourner" means a member of the decedent's immediate family at the funeral. SSRS Disturbing the Peace. It shall be unlawful for any person to engage in picketing or other protest activities within three hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Expert Witnesses: There are any number of expert witnesses who could be called to testify during the trial. By researching the public policy issues in this case, you will locate your own expert witnesses, and you will: 1. gain an understanding of the issues in this case, 2. locate additional facts and opinions to include in the record, and 3. use this information to support your analysis in the legal memo and your arguments in the legal brief. You may call as many experts as necessary to support either Petitioners or Respondents positions as you write your memos and briefs. Be sure to investigate and include the conflicting opinions. Testimony of Abigail Phelps: Abigail Phelps is a member of the Westboro Baptist Church and the daughter of founder Fred Phelps. She testified that the WBC is a 75-member church out of Topeka, Kansas, that protests at military funerals across the country to spread the message that God is directly punishing the United States for tolerating homosexuality by killing US soldiers in battle. More information on the church can be found on the church s website. Exhibits: EXHIBIT A; Westboro Baptist Church Flyer for Nehl funeral EXHIBIT B: Westboro Baptist Church Flyer 1070 EXHIBIT C: Epic for Casey Nehl EXHIBIT D: Map of Fort Inter National Cemetery and environs Research tips: Colorado s Right to Rest in Peace Act (2006) Respect for America's Fallen Heroes Act Military Funeral Disruptions Bill Judicial Watch, Inc. Snyder v. Phelps, 562 US, 131 S.Ct. 1207, 179 L.Ed.2d 172 (Mar. 2, 2011) Restatement (Second) of Torts Procedural History: Leach sued Austin, Square State, and the Patriot Guard Riders for civil damages alleging he was assaulted by Austin and the PGR, that his right to free speech was violated, and that the Peaceful Funeral Act is unconstitutional. Austin countersued, claiming intentional infliction of emotional distress and a violation of his right to privacy. The trial court found for Austin and awarded the family $2.2 million dollars. Leach appealed that decision. In a second lawsuit, Raymond Jorgenson sought civil damages from Leach and Westboro Baptist Church for trespass and invasion of privacy. A jury awarded Jorgenson $750,000. Leach appealed, and the Square State Appellate Court combined these two cases for appeal. Funeral Protests - page 4 December 3, 2012 Spring 2013

5 The American Civil Liberties Union has joined in Leach's appeal. The ACLU challenges unconstitutional laws and practices and the myths upon which these unfair laws are based. Petitioners: Johnny Leach Westboro Baptist Church ACLU Respondents: Steven Austin Raymond Jorgenson Square State Patriot Guard Riders Funeral Protests - page 5 December 3, 2012 Spring 2013