By HEIDI ANDERSON
(CN) - A federal judge struck down as unconstitutional a section of Michigan's funeral protest law that makes it a crime to "disturb" such events, since police used the law to arrest a grieving couple who drove a van marked with political stickers to the burial of a killed soldier.
The ruling leaves intact another part of the law that blocks people from making loud and raucous noise within 500 feet of a funeral, memorial service or viewing of a deceased person, and a third provision that bans intimidating, threatening or harassing statements or gestures in such areas.
Lewis Lowden, a U.S. Army veteran, and his late wife, Jean, had filed the lawsuit after being arrested and jailed under the law when they attended the 2007 funeral of a family friend in Clare County, Mich.
U.S. Army Cpl. Todd Motley was killed in action while serving in Iraq. The Lowdens were friends of the corporal and his family for 15 years.
The van that the Lowdens drove in the funeral procession had signs taped to the windows and bumper stickers that "contained statements that were political in nature, and most were critical of then-U.S. President George W. Bush and his administration's policies," according to the court. "The signs did not contain any statements that were critical of the military or Corporal Motley."
Police spotted the signage and pulled the van over in the middle of the processional, and when Deputy Lawrence Kahsin "asked Lewis Lowden why he had signs in his windows, Lewis Lowden replied that it was his First Amendment right to criticize the government. Deputy Kahsin then asked both Jean and Lewis Lowden if they were protesting. The Lowdens both replied that they were not protesting and that they were there to attend the funeral because they were like family to Corporal Motley."
Kahsin "had not been advised by anyone of a disruption or disturbance caused by the Lowdens' participation in the funeral procession, nor did any such disruption or disturbance occur," the 27-page decision states.
Though the deputy apparently thought the signs were not appropriate for a funeral, the Lowdens argued that "neither the funeral protest statute nor any other law prohibits driving peacefully in a funeral procession with signs that criticize the government."
The deputy acknowledged that the Lowdens was not honking, addressing others in the funeral procession or otherwise disturbing the peace. Still, he arrested and jailed the couple for 24 hours. Jean Lowden, 56 years old at the time, had serious medical conditions that made her arrest and detention "physically painful and distressing," the court noted.
Prosecutors eventually dismissed criminal charges against the Lowdens, who filed a civil action against Clare County and the deputies that allegedly violated their constitutional rights.
U.S. District Judge Thomas Ludington took issue with the third provision of Michigan's law, which forbids "conduct that ... will disturb, disrupt, or adversely affect the funeral." After concluding that this provision violates the First and 14th Amendments, Ludington dismissed Clare from the lawsuit "because it did not have a municipal policy for enforcing Michigan's funeral protest statute." Deputy Kahsin remains a defendant and the lawsuit against him will proceed to damages.
The Michigan Legislature reportedly enacted the funeral protest laws quickly in 2006 as the Kansas-based Westboro Baptist Church gained notoriety for its protests of military funerals to spread the message that God is punishing the United States for tolerating homosexuality. Michigan is one of more than 40 states that passed such laws.
