Senate Approves Bill To Protect Military Funerals Post Snyder v. Phelps

The Senate has approved a bill that would provide additional criminal and civil sanctions for protestors at military funerals. The text of the bill makes changes to two statutes: 18 U.S.C. 1388 (a criminal provision that applies to all funerals of service-members, even at private cemeteries) and 38 U.S.C. 2413 (a civil provision that applies to federal cemeteries).

The bill makes a number of changes to the criminal provision.

First, it makes a number of changes to where and when protests can occur:

Protests are forbidden 120 minutes before, and 120 minutes, after a funeral. Previously, the limit was 60 minutes before and 60 minutes after. Protests are forbidden 300 feet from the location of the funeral. Previously, the limit was 150 feet. Now protests are forbidden not just near the cemetery, but “within 500 feet of the boundary of the residence, home or domicile of any surviving member of the deceased person’s immediate family and includes any individual willfully making or assisting in the making of any noise or diversion that disturbs or tends to disturb the peace of the persons located at such location.”

Second, it modifies the potential criminal penalties of protests:

The possible term of imprisonment increased from 1 years to 2 years. Now, the “The Attorney General may institute proceedings under this section.” Statutory damages range from “not less than $25,000 or more than $50,000 per violation.”

Third, it creates private causes of actions in federal courts for aggrieved family members, whereby district courts can issue injunctive relief. Now District Courts have jurisdiction to “to prevent and restrain violations of this section.” The bill would also create specific causes of action that allows members of the immediate family “who suffer injury as a result of conduct that violates this section” to sue and recover damages, costs of suit, as well as “attorneys’ fees.”

What is perhaps most potentially troublesome about this bill is how it defines the offense–rather nebulously. The definition of forbidden activity is quite broad–“includes any individual willfully making or assisting in the making of any noise or diversion that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral.” The bill creates a “Rebuttable Presumption”:

    It shall be a rebuttable presumption that the violation was committed willfully for purposes of determining relief under this section if the violator, or a person acting in concert with the violator, did not have reasonable grounds to believe, either from the attention or publicity sought by the violator or other circumstance, that the conduct of such violator or person would not disturb or tend to disturb the peace or good order of such funeral, impede or tend to impede the access to or egress from such funeral, disrupt or tend disrupt to a funeral procession, or disturb or tend to disturb the peace of any surviving member of the deceased person’s immediate family who may be found at the residence, home or domicile of the deceased person’s immediate family on the date of the service or ceremony.

What do you think? Constitutional problems? Vagueness (“peace or good order of such funeral”)? Especially considering the Court’s disapproval of the California statute in EMA that failed to define violence. Will there actually be any federal criminal prosecutions instituted by the Attorney General under this section against the Westboro Baptists? Stay tuned.

Cross-posted at JoshBlackman.com.

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1 Response

  1. Joe says:

    Needless knee-jerk expansion of the old rules that in some given case will have problems akin to what you point out and annoyingly only gives WBs more attention. No thanks.