Constitutional Law

Neb. prosecutors, funeral protester reach deal

By By The Associated Press

Editor?s note: The original version of this story contained erroneous information from the Associated Press that has since been removed.

PAPILLION, Neb. ? Prosecutors and a member of Kansas-based Westboro Baptist Church have reached a deal that will keep both sides out of court over actions stemming from the church?s 2007 protest of a serviceman?s funeral.

The 11th-hour deal was signed yesterday, the same day Shirley Phelps-Roper?s trial was to begin on charges of disturbing the peace and negligent child abuse. Those charges will be dismissed, and in exchange Phelps-Roper, 52, will drop a federal lawsuit against Nebraska authorities accusing them of malicious prosecution.

As part of the deal pending a judge?s expected Aug. 31 approval, Phelps-Roper also agreed to remove Sarpy County Attorney Lee Polikov from a separate lawsuit challenging the constitutionality of the state?s funeral-protest law. Defendants in that ongoing federal suit include Republican Gov. Dave Heineman and state Attorney General Jon Bruning.

The charges against Phelps-Roper stemmed from her protest at the funeral of Nebraska Army National Guard Spc. William Lee ?Bill? Bailey of Bellevue. During the protest, Phelps-Roper allowed her 10-year-old son to stand on an American flag, while she wore a flag as a skirt that dragged on the ground. Police arrested her on suspicion of violating a state flag-mutilation law, as well as on child-abuse and disturbing-the-peace charges.

Members of Westboro Baptist Church, based in Topeka, Kan., travel the country protesting at soldiers? funerals because they believe U.S. troop deaths are punishment for the nation?s tolerance of homosexuality. Members often trample on, wear and display the American flag upside-down as part of their protests.

Phelps-Roper, an attorney for and lifelong member of Westboro Baptist Church and mother of 11, has maintained the charges against her were not warranted because she was exercising her right to free speech and had been in compliance with a Bellevue permit for the protest. She had pleaded not guilty and twice unsuccessfully asked for the case to be dismissed.

Under the terms of the deal, Phelps-Roper agreed to drop a federal lawsuit against Nebraska authorities related to her 2007 arrest.

?Nobody is admitting any wrongdoing here,? said Omaha attorney Bassel El-Kasaby, who represents Phelps-Roper.

The lawsuit accuses Polikov, as well as other prosecutors in the office, of violating Phelps-Roper?s constitutional rights ?by investigating her for protected expressive activity,? among other things.

Phelps-Roper also agreed to remove Polikov as a defendant in a separate federal lawsuit challenging Nebraska?s funeral-protest law, which prohibits picketing within 300 feet of a funeral or memorial services.

Phelps-Roper had also filed a lawsuit challenging the state?s flag-mutilation law, which had barred intentionally ?casting contempt or ridicule? upon an American or Nebraska flag by mutilating, defacing, defiling, burning or trampling on it. Last month, the state attorney general indicated the state law was unconstitutional, and a federal judge permanently stopped the flag-mutilation law from being enforced.

?I?m so sorry that Polikov dragged this out for three years,? Phelps-Roper said. ?His effort to make us stay out of Nebraska failed. I love it.?

El-Kasaby said he approached prosecutors about the deal this weekend in an effort to have the child-abuse and disturbing-the-peace counts dropped.

?After the flag-mutilation law was determined to be unconstitutional, all that was left, in my opinion, was religious and political persecution,? El-Kasaby said.

Full post as published by First Amendment Center on August 23, 2010 (boomark / email).