Moot Court Facts Gittmann v. Stark (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 This is summary testimony, so do not quote it directly.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 Alan Lewin: Alan Lewin has been the superintendent of Fort Inter National Cemetery, located west of the city limits of Hillsboro, Square State, since 1992. He is a civilian employee of the Department of the Army. Lewin 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 May 7, 2012, the day Capt. Blanchard was buried, there were 13 burials: one WWII veteran, one Korean War veteran, five Vietnam War veteran, and five Iraq and Afghanistan War veterans in addition to Capt. Blanchard. 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. Lewin testified that the cemetery totals approximately 700 acres of developed and undeveloped land. Only the Phase I and Phase II areas are fenced: there is a three-foot high stone wall with another three feet of decorative wrought iron on top along the east where there is public access, and 8-foot chain link with razor wire along three other sides. Access to the cemetery is from the east via a private street, Cemetery Road. Capt. Blanchard internment was scheduled to follow the funeral service at the Catholic church on May 7, 2012, at 2:30PM. He is buried in plot I-415. Testimony of Regan Blanchard: Regan Blanchard is the wife of Army Captain Eric Blanchard. Regan is 32, and a public relations officer for the Hillsboro Community Hospital. Regan and Eric were married in 1999, and have two children: Syndey, 8, and Bryan, 5. Regan testified that she was notified that her husband, Capt. Eric Blanchard, 32, was killed in a helicopter crash near Kandahar Airfield on April 30, 2012. Capt. Blanchard was assigned to the 906th Air Refueling Squadron out of Scott Air Force Base in Illinois. Regan 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. Regan testified that as soon as the notice of Eric 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, Regan cannot remember who, suggested that the family contact the Patriot Guard Riders to protect the family from the WBC protestors. Regan said she thinks her father made that call.
Regan testified that the family drove from the Saint Expeditus Parish Church where there were maybe a dozen protestors to the cemetery where there were perhaps two dozen more protestors. She testified that it seemed like there was a solid line of people standing along the cemetery fence blocking the Westboro Baptist Church people who were standing in the street. She thinks the people protecting the cemetery were a mix of Patriot Guard Riders and regular people. She was very upset and not thinking clearly at that time. She testified that 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. Regan 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 following the funeral. She stated that, at the conclusion of the funeral, she went to the first limousine with her father and mother, Steven and Debra Stark, and her two children. As they drove out of the gates onto Cemetery Road, a man later identified as Ed Gittmann 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. Regan testified that her father, Steven Stark, got out of the car and shoved Gittmann out of the way in order clear the street for the limousine. Gittmann then hit Stark with the sign he was carrying, and Stark threw a right hook that landed Gittmann on the ground. Regan testified that Gittmann was bleeding and seemed stunned for a minute, but quickly regained his feet and came at the car again. At this point in time, the man she now knows was PGR member Zachary Wade grabbed Gittmann and twisted his arm behind his back, holding him out of the way so that the family could leave the cemetery. Regan saw the military police arriving as she left in the limousine with her family. She testified that her daughter, Sydney, began screaming when the car was attacked and still has nightmares about it. Regan testified that her father, Steven Stark, is a retired Navy Captain and SEAL, and is known for his hair-trigger temper. Regan testified that during her husband s last visit home, Eric and her father taught Bryan to ride his bike without training wheels. Regan testified that on that occasion, "I don't know, Dad may have been even happier than Eric and Bryan were." Regan believes that Steven would do anything to protect his grandchildren. Regan 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 Zachary Wade: Zachary Wade 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 Funeral Protests - page 2 February 27, 2014 Spring 2014
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. Wade 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, Regan Blanchard or Steven Stark contacted Wade he spoke to several people about Capt. Blanchard s funeral and asked that the PGR attend the funeral because the WBC had posted the demonstration on their website. Wade notified law enforcement that the PGR would attend Capt. Blanchard 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, Wade estimates that there were close to 80 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. Wade testified that he had been standing on the west side of Cemetery Road right at the entrance to the cemetery when he realized there was trouble. He saw Gittmann begin banging the sign on the limousine, and saw some pushing and shoving between Gittmann and Steven Stark. Wade testified he immediately moved in and tried only to restrain Gittmann, eventually sitting on him to hold him down. The military police arrived shortly after the altercation began, and the Charlotte County sheriff arrived about 10 minutes later. Both Gittmann and Wade were turned over to the county sheriff and charged with violating Square State's "Peaceful Funeral" Act. A jury found Gittmann guilty but did not convict Wade. Testimony of William (Billy) Earl: William (Billy) Earl 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 1967. Earl 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 Earl property. There are no vacant lots on Cemetery Road and all the structures are single-family dwellings. Earl testified that Cemetery Road is a private two-lane road, without sidewalks. He estimated that the road is pretty wide about 12 feet, and that there are no sidewalks on either side of the road. He testified that there is a drainage ditch and shoulder between the cemetery fence and the road which is about 30 feet wide. Earl testified 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. Earl testified his house is about 20 feet back from the road which is not usually a problem because the cemetery is the only thing across the road and it s always nice and quiet out here. Earl testified that on May 7, 2012, 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 Funeral Protests - page 3 February 27, 2014 Spring 2014
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. Earl testified that he called the sheriff 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 sheriff 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, Earl 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 sheriffs finally showed up. Relevant statutes: Square State s Peaceful Funeral Act reads in pertinent part: SSRS 19-12-1001. 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 19-12-1002. 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 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 19-12-1003. 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 Funeral Protests - page 4 February 27, 2014 Spring 2014
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 Blanchard funeral EXHIBIT B: Westboro Baptist Church Flyer 1070 EXHIBIT C: Epic for Eric Blanchard 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 652 http://www.tomwbell.com/netlaw/ch05/r2ndtorts.html Procedural History: Gittmann sued Stark, Square State, and the Patriot Guard Riders for civil damages alleging he was assaulted by Stark and the PGR, that his right to free speech was violated, and that the Peaceful Funeral Act is unconstitutional. Stark countersued, claiming intentional infliction of emotional distress and a violation of his right to privacy. The trial court found for Stark and awarded the family $2.2 million dollars. Gittmann is appealing that decision. The American Civil Liberties Union has joined in Gittmann's appeal. The ACLU challenges unconstitutional laws and practices and the myths upon which these unfair laws are based. Petitioners: Ed Gittmann Westboro Baptist Church ACLU Abigail Phelps Respondents: Steven Stark Square State Reagan Blanchard Patriot Guard Riders Funeral Protests - page 5 February 27, 2014 Spring 2014