ORDINANCE NO. 120925
Enacting a new Section 50-162,
Code of Ordinances, entitled “Funeral protests prohibited” to restrict protests
within 300 feet of, and within one hour before and one hour after, a funeral or
burial service.
WHEREAS, the City
first adopted restrictions on protests at funerals on March 25, 1993, by the
enactment of Ordinance No. 930270, As Amended; and
WHEREAS, following
the commencement of armed conflict in Iraq and Afghanistan and then the
decision of a small group of people known as the Westboro Baptist Church of
Topeka, Kansas, to expand their protests to the services held for fallen
members of the armed forces, many cities and states enacted funeral picketing
restrictions; and
WHEREAS, in response
to those new restrictions litigation was conducted in other cities in Missouri,
as well as in other states, that placed the City’s ordinance in legal jeopardy;
and
WHEREAS, although at
least one other federal Circuit Court of Appeals had approved funeral picketing
restrictions, the Court of Appeals controlling the State of Missouri held a
divergent view of the weight that should be given to grieving families and
friends when compared to a largely unregulated exercise of the First Amendment;
and
WHEREAS, to avoid the
loss of litigation and payment of fees to members of the Westboro Baptist
Church of Topeka, Kansas, the City repealed its ordinance on August 27, 2009,
by Committee Substitute for Ordinance No. 090639; and
WHEREAS, the Council
instructed the City Attorney to monitor litigation challenging the Missouri
funeral picketing law with the understanding that any changes in the legal
environment should be brought to the attention of the City Council; and
WHEREAS, the United
States Court of Appeals for the Eighth Circuit on October 16, 2012, reversed
its prior holdings that caused the invalidation of funeral picketing
regulations and thus approved the restrictions enacted by the City of
Manchester, Missouri by its en banc decision in the case of Phelps-Roper
v. City of Manchester, 2012 U.S.App. LEXIS 21359 (8th Cir. 2012) (en
banc), wherein the Court said: “We therefore overrule the rulings in Nixon
and Olmer which limited the government's interest in protecting
unwilling listeners to residential settings. . . .It is unreasonable to expect
a family or friend of the deceased to reschedule or forgo attending the funeral
so as to avoid offensive picketing”; and
WHEREAS, it is
the intent of the City Council to promptly re-enact restrictions on any
protests conducted at or near the sites of funerals to protect the grieving of
friends and loved ones of a deceased person; and
WHEREAS, to
settle the scope and authorization of the restrictions imposed by the City
Council the exact terms of the ordinance addressed by the Court of Appeals are
enacted; NOW, THEREFORE,
BE IT ORDAINED
BY THE COUNCIL OF KANSAS CITY:
Section 1. That
there is a new Section 50-162, Code of Ordinances, enacted to read as follows:
Sec. 50-162. Funeral Protests
Prohibited.
(a) Every
citizen may freely speak, write and publish the person's sentiments on all
subjects, being responsible for the abuse of the right, but no person shall
picket or engage in other protest activities, nor shall any association or
corporation cause picketing or other protest activities to occur within three
hundred (300) feet of any residence, cemetery, funeral home, church, synagogue,
or other establishment during or within one (1) hour before or one (1) hour
after the conducting of any actual funeral or burial service at that place.
(b) As used in
this section, "other protest activities" means any action that is
disruptive or undertaken to disrupt or disturb a funeral or burial service.
(c) As used in
this section, "funeral" and "burial service" mean the
ceremonies and memorial services held in conjunction with the burial or
cremation of the dead, but this section does not apply to processions while
they are in transit beyond any three hundred (300) foot zone that is
established under subsection (a) above.
__________________________________________
Approved as to form and legality:
________________________________
William Geary
City Attorney