Snyder v. Phelps et al

Filing 236

REPLY to Response to Motion re 215 MOTION for Judgment as a Matter of Law and for Additional Relief filed by Fred W. Phelps, Sr, Westboro Baptist Church, Inc.. (Katz, Jonathan)

Snyder v. Phelps et al

Doc. 236

IN THE UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND ­ BALTIMORE DIVISION ALBERT SNYDER, vs. Plaintiff, Case No. 1:06-cv-1389-RDB

FRED W. PHELPS, SR.; SHIRLEY L. PHELPS-ROPER; REBEKAH A. PHELPS-DAVIS; and, WESTBORO BAPTIST CHURCH, INC., Defendants. REPLY OF DEFENDANTS WESTBORO BAPTIST CHURCH & PHELPS TO PLAINTIFF'S RESPONSE TO POST-TRIAL MOTIONS Defendants Phelps, Sr., Westboro through Baptist Church, Inc. counsel, and Fred W. the

the

undersigned

submit

following brief points of reply to plaintiff's response to their post-trial motions: 1. Plaintiff disrupted. bears no continues to assert that the funeral was

Setting aside the fact that the record evidence of disruption, either for the

plaintiff himself or any other funeral attendee,1 this

1

Plaintiff and his house-mate both testified to the fact that the funeral went forward with all pieces as planned; that they were focused on the funeral; and that it was a beautiful event. They offered no testimony at all of disruption. Plaintiff suggests in passing that Father Leo's participation was disrupted. Father Leo is not a party to this case; he did not offer any evidence that he was disrupted; he only described that he chose to conduct meetings and try to insulate the school children (who he later brought out to participate in the very

Dockets.Justia.com

lawsuit Further,

was and

not more

for

a

tort

called whether

"disruption." or not the

importantly,

funeral was disrupted is not the issue the Court sent to the jury. The Court allowed the jury to consider

claims of outrage and invasion of privacy based on the content of the words; based on whether at any time, in any place, and in any manner plaintiff saw the words; and based on a subjective claim by plaintiff ­ which the Court suggested should be made on October 15, 2007 ­ that the signs targeted plaintiff and/or his family. 2. The Court also specifically held that it did not

matter how far away the signs were, or whether people going to the funeral saw them. Indeed, plaintiff

agreed from start to finish he saw no content of the sign when he and went all to the funeral. Thus, Hill,

McQueary

other

cases

involving

captive In the

audiences have no application in this case.

context of determining whether a law that set funeral picketers back 300 feet (whatever the content of their picket signs; whether or not they were out of sight or public event that was this funeral); all of which activities had nothing to do with this funeral. Further, Father Leo demonstrated his own content bias in this matter by the letter to the editor he wrote and which was published a few days after the funeral ­ which again shows what a public-interest issue this funeral was. Further, the priest who actually conducted the funeral testified there was no disruption. 2

sound; whether or not anyone ever saw the words in any other setting), the McQueary Court assumed without

finding that "the state has an interest in protecting funeral attendees from unwanted communications that

are so obtrusive that they are impractical to avoid," 453 F.Supp.2d goers they at 992. the the In this case, none no any of the even and

funeral suggested

saw saw

defendants; content of

one signs;

certainly no one has testified that the presence of the picketers by where they were located, not by

content, were obtrusive.

There was simply too much

distance between the church, the funeral attendees, and the defendants, to claim they were obtrusive.

Again, that is not how the Court framed the case; that is not how the instructions were given to the jury;

that is not the evidence in the case. 3. Plaintiff suggests the signs were pornographic. Of

course that was not the instruction given to the jury. And the term "pornography" has legal meaning in this country. (If that definition is to change, along with

the rest of established law about picketing, citizens should be put on notice of that change before being tagged for millions of dollars in inflammatory

verdicts.)

Pornography can not be banned unless it is

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obscene,

per

the

United

States

Supreme

Court,

see

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240, 122 S.Ct. 1389, 1396, 152 L.2d 403 (2002). The term

"obscenity" also has legal meaning in this country. Words are not obscene unless taken as a whole they a) appeal to prurient interest in sex, and b) portray sexual conduct in a patently offensive way, and c) do not have serious literary, artistic, Miller political or

scientific value.

See, e.g.,

v. California,

413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). coupled An with a anatomically religious incorrect message to stick drive figure home a

critical point on a vital public issue fails all three parts of the definition. 4. Plaintiff now says he limited his claim for liability to three signs, to wit, You are Going to Hell, God This is an utterly the case, in

Hates You and Semper Fi Fags. unwarranted claim. First,

throughout

discovery, in pleadings, and in particular during all aspects of the trial, from opening, to closing, to direct testimony, to cross-examination, with lay

witnesses, with defendants, with expert witnesses ­ all points along the way ­ many more signs and The

religious messages were addressed and criticized.

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entire case was about all of the signs at the picket that day and then some. Further, in spite of repeated requests in writing and orally by defendants, the Court absolutely refused to put any limits on what signs or content went to the jury. Every single sign was given to the jury to find liability.
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Not

once

in

this

trial

did

plaintiff

limit

himself to those three signs.

He complained about all

the signs; all the message; even mocking the fact that defendants claim to be a church. It is rather

unbelievable at this hour for anyone to suggest this case was limited to three signs. would have been and plainly this If that was so, it in the have jury been

stated

instructions,

trial

would

substantially shorter in duration.

Further, even by

targeting three signs by content, it demonstrates this case is about content. What difference does it make

what the signs say if it is not about content? It is absurd to claim that a sign saying "You Are Going to Hell" had anything to do with an already-dead person. someone Or to say "God Hates You," was directed at not on the scene and for whom it was a

physical impossibility to be on the scene.

That kind

of totally improper argument, is why defendants had to

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defend

their is

entire grossly

religious compounded complaints

beliefs. at this

That hour by to

impropriety pretending three signs. 5.

plaintiff's

were

limited

Plaintiff says the videos shown to the jury

are the pieces of evidence that inflamed them; that defendants made the decision to show them. This The

position conflicts with the facts and the law.

fact is that plaintiff was allowed to challenge the meaning of the signs, and make a subjective claim That

about what they meant and who they targeted.

wrongfully put defendants in the position of having to explain what they meant, to wit, explain why they hold their religious beliefs deeply held and what their

consciences tell them about God and their duty to God. Even so, the defense had to be made. It appears plaintiff now concedes the jurors were

inflamed, but argues that since defendants caused it, the product of prejudice must still stand. There is no

question in this record that the verdict was the product of passion and prejudice; their passions and prejudices were inflamed from the start to the finish of this trial.
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6. Plaintiff says the speech in this case was not on public issues. Yet on October 15, 2007 the Court granted

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defendants

summary

judgment

on

the

invasion

of

privacy

through publication of private facts theory, saying nothing private had been published. Further, the Court granted

summary judgment on the defamation claim, saying the words were opinion. This framework, coupled with the content and

context of the words, all show plainly that all of the words uttered by defendants that were presented to the jury were public words, in public places, on public topics. If

the words were not the publication of private facts ­ as the Court has already found facts. 7. Plaintiff says the fact that an obituary was put ­ then they were on public

in the newspaper (actually several as the record reflects) does not make the alone. funeral public. Probably not standing

The obituaries were offered because plaintiff kept

insisting the paper published that the funeral was private. Of course the obituaries have no such statement about the funeral. That is a point so secondary that it hardly bears Of far greater importance is the fact that the soldier was a highly public topic; the

mentioning. death of

this

funeral of this soldier was a highly public event, attended by hundreds from the public inside and outside; that the funeral of this soldier was a highly public topic (as have been all of the soldiers' deaths and funerals since this

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war started); the speech took place in traditional public arenas (sidewalks, media commentary, Internet); and the

words of the defendants were all on public issues.

Those

are the attributes of these events that make this public speech.
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(It obituaries

is

only in

secondarily the paper;

relevant and it

that is

the only

were

secondarily relevant that in all likelihood, under the legal standard, plaintiff made himself a limited-

purpose public figure

before he filed this lawsuit.

He talked to the media frequently about his son, his life, his death, and the funeral. He talked to his But speech

Congressman about the war and his son's death. even if neither of these points makes the

public in this case, that doesn't matter.

Those are

far secondary reasons for why the speech is public.) 8. Plaintiff says that in Showalter ­ where the

photographer went into the funeral, took a photo of the dead soldier lying in his coffin, and sold it so it was widely published ­ since the family did not

know the photo was taken at the time that case is distinguishable from this one. Whether or not the

family knew the photo was taken at the time is not the issue in that case, and was not discussed by the Tenth

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Circuit, let alone the basis for its ruling. issue in that and case was whether the the funeral

The was

private,

therefore

photographer

committed

invasion of privacy. Showalter Showalter

This is the very issue here. Thus,

said the funeral was not private. never had to reach the First

Amendment

questions in that case.

That is true here as well. The same attributes that

The funeral was not private.

made the funeral public in Showalter make this funeral public. Lots of media coverage before, during and

after; lots of attention by people in the community including elected lots of officials strangers (like plaintiff's lots of

Congressman);

attending;

interest in the deaths of soldiers.

Ditto here.

Showalter is directly applicable; it is the only opinion anyone has found about the soldiers' funerals (before the Eighth Circuit Phelps-Davis opinion of

Dec. 6, 2007, which is discussed in and attached to defendants' reply on the motion for stay ); and the holding is directly on point and legally sound. funeral was not private. Circuit's Phelps-Roper This

(According to the Eighth even if it was

opinion,

private, and even if the government has an interest in

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preserving some privacy around the funeral, that is not enough to prohibit picketing by defendants.)
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9.

Plaintiff argues that defendants' expert witness said picketing soldiers' funerals was not a necessary part of defendants' religion. Defendants' religious expert testified that in his personal opinion the funeral

picketing was a stretch; that was not his professional opinion, which of was no about the rightness opinions eligible or and to

correctness beliefs

defendants' only

religious are

(which

defendants

decide); but rather about the history of people who believed Calvinism, in the which TULIP are doctrines, the or doctrines beliefs of of

doctrinal

defendants; and the historic activism of people with these religious beliefs. does not personally The fact that Dr. Balmer in picketing soldiers'

believe

funerals is not a basis for saying defendants are not entitled to engage in this religious practice. 9. Plaintiff says the statutory cap on noneconomic

damages in Md. Cts. & Jud. Proc. art. § 11-108 has no application. Defendants submit that conclusion is not

supported by the plain language of the statute, which applies to "any action for personal injury, pain,

suffering, ..."; and that this is not a settled issue.

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The Cole case (rendered by the intermediate court, not the state's highest court), says that the statute was intended to get at out-of-control insurance costs, and since law insurance not doesn't to cover cover intentional intentional torts torts, the no

was

meant

matter its language.

Defendants believe this issue

should be sent to the Maryland Court of App eals for resolution, because that court has not reviewed this question. There has been quite a bit of litigation

about the coverage of this cap in Maryland, with the highest court at times overturning the intermediate court on rulings about its coverage, and at times the legislature then making changes to the law. See,

e.g., Anchor Packing Company v. Grimshaw, 115 Md.App. 134, 692 A.2d 5 (1997) (cap based on date injuries came into existence); United States v. Streidel, 329

Md. 533, 620 A.2d 905 (1993) (cap does not apply to wrongful death actions, overruling Potomac Elec. v.

Smith, 79 Md.App. 591, 558 A.2d 768, cert. denied , 317 Md. 393, 564 A.2d 407 [1989]); Murphy v. Edmonds, 325 Md. 342, 370, 601 A.2d 102, 116 (1992) (in finding the cap constitutional the court noted that it "is also significant that the cap applies to all personal

injury claimants equally rather than singling out one

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category

of

claimants,"

thus

calling

into

question
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whether Cole is sound law). Further, the Cole court held that the legislative purpose was to get insurance rates back under control. In Anchor Packing Company v. Grimshaw, supra, the

court said the primary purposes in enacting the cap were to "alleviate the liability insurance crisis and to decrease unpredictable and speculative noneconomic damages awards," 115 Md.App. at 151, 692 A.2d at 13; emphasis added. did This not concern to suggests exclude that the

legislature

intend

intentional

torts, because this concern has equal application to intentional torts. Further, the notion that insurance

companies are not at all impacted by intentional torts is not accurate. There is ongoing litigation all the

time about whether insurance companies have to provide a defense in actions for intentional torts, e.g., Cole v. State Farm Mut. Ins. Co., 359 Md. 298, 753 A.2d 533 (1000) (addressed whether intentional tort is an

"accident" for accidental death insurance coverage); and insurance policies cover things like defamation, false imprisonment and malicious prosecution, at times giving rise to litigation over whether coverage has to be provided because elsewhere in the contract there is

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a provision excluding intentional conduct, see, e.g., Collins, "Level 3 v. Federal Insurance: Do you Know What is in Your Directors' 73 UMKC and L. Officers' 199, Liability 207 (Fall

Insurance 2004).

Policy,

Rev.

Thus, defendants submit this is not a settled

issue; given the unique nature of this case it is an issue that should be reviewed. 10. One final point: Plaintiff continues to

assert in the response to the post-trial motion the same unfounded claims that defendants have lied in

this record.

Those claims are responded to in greater

detail in Defendants' reply on the motion for stay. WHEREFORE, for the foregoing reasons, Defendants move the court to grant their post-trial motions.

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Respectfully submitted,

___/s/__________ Jonathan L. Katz D.Md. Bar No. 07007 1400 Spring St., Suite 410 Silver Spring, MD 20910 [phone] Fax: [phone] [e-mail] CERTIFICATE OF SERVICE I certify that a copy of the foregoing document was served by the CM/ECF filing system on December 18, 2007, to: Sean E. Summers, Esq. Craig Tod Trebilcock, Esq. Becky Phelps-Davis (by mail only) 1216 Cambridge Topeka, KS 66604 Shirley Phelps-Roper (by mail only) 3640 Churchill Road Topeka, KS 66604 ____/s/_____________________________ Jonathan L. Katz

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