PAPILLION, Neb. – Family members of a fallen U.S. soldier expressed disappointment Monday after prosecutors and protesters from Kansas-based Westboro Baptist Church reached a deal that will keep both sides out of court over actions stemming from a church member's 2007 protest of the serviceman's funeral.
The 11th-hour deal was signed Monday, 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 in exchange for Phelps-Roper, 52, dropping 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.
But family members and friends of the fallen Bellevue soldier say the deal leaves them out in the cold.
"I came here today to see some justice done. This isn't right," said Randy Chaney, 44, the brother of Petty Officer 1st Class Jeffrey Chaney, who was 35 when he was killed in 2007 by a roadside bomb in Iraq.
It was outside the National Guardsman's funeral in the an Omaha suburb of Bellevue that Phelps-Roper allowed her 10-year-old son to stand on an American flag in protest, 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 child abuse and disturbing the peace charges.
Chaney said he had hoped the justice system would constrain the group's ability to bring children to such protests.
"She's putting her children in danger," he said.
Jeff Chaney's mother, Connie Chaney, said she was disappointed with the deal and that consideration should have been given to her and other families attending soldiers' funerals who have had to encounter signs by Westboro members proclaiming "Thank God for dead soldiers" and "Thank God for IEDs."
"They're catching people at the most vulnerable time they can get them," Connie Chaney said.
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 executing 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. "He caused these people to believe in a lie. 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.
(This version corrects to note that 1 lawsuit was dropped instead of 2.)