The Chicago Personal Injury Law Blog

Funeral Protest Ban Nearly Guarantees Victorious Lawsuits

Throughout the history of this great nation, Americans have been willing to violate the law and spend time in jail in order to protest things that they disagreed with. There have been hunger strikes for women’s suffrage and sit-ins for civil rights. Often, these protestors would end up in jail for their trouble. History has proven that people will sit in a cell to defend their beliefs.

That’s why criminal offenses sometimes aren’t enough to curtail disagreeable behavior. A two-pronged approach, of criminal and civil liability, is often far more effective. Perhaps that was the rationale behind the new law that seeks to curtail the Westboro Baptist Church protests. While they may be willing to go to jail in order to yell “God Hates Fags!” at the families of dead soldiers, will they be able to withstand a simultaneous assault on their pocketbooks?

“The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012” was passed by Congress yesterday and is expected to be approved by the President. We studied the lengthy 45-page bill in detail. News accounts from CNN and the Huffington Post could not seem to come to a consensus on what the bill said and seem to have missed out completely on the civil liability aspect.

The criminal offense aspects and prohibited conduct are available here, at our sister blog. If someone is convicted of the criminal provisions, in addition to jail time and fines, they also face severe civil sanctions. The law states that if they lose the criminal case, they are barred from defending the civil case as well via offensive collateral estoppel.

Estoppel is a legal concept that in these contexts operates as a time saving device. When an issue is decided against a party in a court of law, that decision can be carried over into subsequent cases. For example, if an oil company is found at fault for polluting a neighborhood in a lawsuit by one family, subsequent families could sue and the issue of fault would already be decided.

Obviously, such a device is troublesome. A party might not be motivated to defend a $500 case, but later might wish to defend against a $5 million case.

However, that’s exactly what this law provides. If the defendant loses their criminal case, they are estopped from defending the issues in a civil case. One possible justification is the different burdens of proof. The criminal case is “beyond a reasonable doubt,” which is far higher than the burden of proof in a civil case. If you can prove the criminal case, the civil case should be a guaranteed victory anyway.

The law also guarantees a good amount of money. If there’s a sympathetic jury, they might hand over millions to the affected family. If not, the law allows the family to elect “statutory damages” of $25,000 to $50,000, to be set by the judge as to what amount is “fair.”

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