March-April 2007

My first encounter with funeral service protests

It was on a somewhat quiet afternoon that I received a phone call from Hemphill County Sheriff Gary Henderson. He had received notice from the Westboro Baptist Church in Kansas that church members intended to protest at the funeral of Miles Henderson, a 24-year-old pilot with the 82nd Airborne Division in Iraq who died when his Apache AH-64D crashed. His body was brought home to Canadian November 14, 2006, and his funeral was scheduled for the following Sunday.

(For those of you unfamiliar with Westboro Baptist Church, its members protest at the funerals of soldiers who have served in the Middle East and others, carrying signs designed to hurt and insult an already pained and grieving family and community.)

As soon as Sheriff Henderson called, I immediately contacted Rob Kepple at TDCAA and, as always, he came to my rescue. Rob located Penal Code §42.055,1 which concerns funeral service disruptions, and also suggested I call Jeri Yenne, the CDA in Brazoria County, because she had previous contact with the Westboro Baptist Church.

It was late when I called Jeri and although she was not in, she immediately returned my call. We had a very good conversation about what we believed we could and could not do under this new section of the Penal Code and ultimately determined we really had no definite answers. One thing we were certain of was that as prosecutors, we would assist law enforcement in protecting the Henderson family during the funeral. Jeri also suggested videotaping the entire event, noting that the Westboro Baptist Church usually asks a member to take photos at and videotape the protest too. She also recommended I contact the Patriot Guard Riders, a group of motorcycle riders, most of whom are either veterans or military reservists (many are also current law enforcement) familiar with the Westboro Baptist Church. They ride their motorcycles to the funeral and assist law enforcement in protecting the family from the protesters. Once I learned all of this, some of my fears were dispelled; however, I must confess I still had some lingering reservations. (It is hard to let go of that “biker” stereotype.)

After talking with Jeri, I did a little of my own research on the Westboro Baptist Church. A visit to its website spoke volumes about these people. I even went online and watched an interview by Sean Hannity and Alan Colmes on with a leader of this group, Shirley Phelps-Roper. (If you knew how computer illiterate I am, you would be properly impressed with this amount of Internet research!) If you ever anticipate this group coming into your community, you must listen to this interview. (Do an online search on the Fox News site for Phelps-Roper’s name.) I do not understand what motivates these people to do and say the things they do, but even more so, why they choose to do it at a time when family and friends are mourning the loss of a loved one.

Armed with Jeri’s suggestions, I called Sheriff Henderson back. At the time he initially called me, I had no idea how much planning he had already done in anticipation of the protesters coming into his county. He had been working with the family, funeral home, city manager, and public works director to plan routes for the funeral procession and to determine what intersections to block. He had already anticipated the route the protesters would take coming into the county and knew where his officers would need to be to intercept and escort them to the protest area he had cordoned off. Sheriff Henderson had measured the 500-foot distance required under the statute from the church (where the memorial service was held), making sure it was in a public location, and marked it with crime scene tape. We were fortunate because the church is south of our courthouse in Canadian; Sheriff Henderson placed the protest area on the north side of the courthouse, thus effectively using the courthouse to block the protestors from the funeral.

He determined that the Patriot Guard Riders would stay in the street on the north side of the courthouse, allowing them to protect Miles’ family and friends from the protestors’ chants and signs but still not interfere with the church members’ right to protest. He had already contacted the Patriot Guard Riders and notified them of the upcoming protest. He had also anticipated the need for videotaping and photographing the crowd and had already contacted area agencies to assist Hemphill County deputies on the day of the funeral. Although the statute requires law enforcement to order any protestor to “move, disperse, or otherwise remedy the violation prior to his arrest,” I told him that my interpretation of the statute also allowed him to arrest anyone who “had intentionally harmed the interests of others which those sections seek to protect”; to me, this language was an exception to the provision requiring law enforcement to order the protestors to move. We also needed to identify a specific individual who had been harmed prior to any arrests. Sheriff Henderson’s position was that we would try to avoid arrests if possible, allow the church members to protest, then leave the community. He believed (and I did too) that to do otherwise would provide this group the publicity they were so desperately seeking.


The funeral

The day of the funeral dawned bright and comfortably cool, which is unusual for a November day in the Texas Panhandle. There was just enough breeze to assist the flags in flying proudly. My investigator, Connie Lockridge, and I drove to Canadian and went directly to the courthouse for our strategy meeting. I was so impressed and humbled by the number of agencies in attendance. Sheriff Henderson had received volunteers from Sheriff Joel Finsterwald in Wheeler County and a couple of his deputies (his sergeant was riding with the Patriot Guard); Sheriff Dana Miller in Roberts County and one of his deputies; Sheriff Don Copeland in Gray County and his chief deputy, lieutenant, and two additional deputies; Sheriff Gary Evans in Hansford County and one of his deputies, Texas Highway Patrol Lieutenant Ben Urbanczyk; Sgt. Randy Woodrum and three of their troopers; Texas Parks and Wildlife Game Warden Jerry Stucki; Chief Scott Brewster of the Canadian Volunteer Fire Department and his entire department; Hemphill County EMS and the entire Hemphill County Sheriff’s Department.

During the meeting Sheriff Henderson told the group that there would be a private memorial service at the family’s ranch and that he would escort the Patriot Guard out to the ranch. After the service he would lead the Patriot Guard, which would act as an escort for the family, back to town to the church where a public memorial service would be held. He had prepared maps for the attendees that had the routes and intersections marked. He informed the group that the protestors would be escorted to the specific location on the north side of the courthouse and that after the protest they would be escorted out of town. The Patriot Guard would be located on the street between the protestors and the courthouse and that the street to the south of the courthouse, which ran in front of the church, would be cordoned off for the general procession. Sheriff Henderson made it very clear that his intent was to maintain the peace, allow the protestors to exercise their right, and then get them out of his county and back to Kansas. With assignments handed out, we were ready.

The protestors arrived early and took time to enjoy the city’s walking park, which I thought a bit odd. Once they were escorted to the protest area it became increasingly clear that this “protest” was not going to be of a scale and magnitude that would make CNN or Fox News. There were only about 10 protestors; however, the potential for trouble was still there. The Patriot Guard, with backs turned, lined up in front of the protestors and held U.S. flags.

The protestors removed their signs from bags, held them up, sang a few songs, and were done. They were escorted out of town without incident. Sheriff Henderson had accomplished his goal of maintaining the peace. Miles Henderson’s family had neither seen nor heard any of the protest.


If you are ever confronted with a similar situation, I suggest employing Sheriff Henderson’s strategy of careful, detailed planning, working extensively with the family and the funeral home, and contacting the Patriot Guard Riders for help ( It was clear by the bikers’ professionalism that they knew what they were doing: They were not there to argue with, confront, or even acknowledge the existence of the Westboro Baptist Church members but rather to protect the family and friends of Miles Henderson. I was truly impressed and deeply moved by the Patriot Guard Riders.

§42.055 was not put to the test in Canadian, Texas, on that November day, which is not necessarily a bad thing; therefore, I have no actual experiences to pass along regarding this statute’s legal ramifications. What I can tell you is how truly proud I am of all of the agencies and people who participated in this event. I still get tears in my eyes when I think of what took place in our small Panhandle town: the three-mile long procession of bikers riding two abreast escorting the general procession; the Patriot Guard Riders, standing with flags flying, lining the walkway for the family to enter the private memorial service; and the Riders standing guard protecting the family from the protestors. I know that patriotism still lives and in some small way perhaps we were able to tell Miles’ family that we truly appreciated his sacrifice.


1 Because §42.055 was passed during a special session, its language does not appear in TDCAA’s Penal Code. For readers’ convenience, it is reprinted here.
(a) In this section:
        (1) “Facility” means a building at which any portion of a funeral service takes place, including a funeral parlor, mortuary, private home, or established place of worship.
        (2) “Funeral service” means a ceremony, procession, or memorial service, including a wake or viewing, held in connection with the burial or creamation of the dead.
        (3) “Picketing” means:
            (A) standing, sitting, or repeated walking, riding, driving, or other similar action by a person displaying or carrying a banner, placard, or sign;
            (B) engaging in loud singing, chanting, whistling, or yelling, with or without noise amplication through a device such as a bullhorn or microphone; or
            (C) blocking access to a facility or cemetery being used for a funeral service.
(b) A person commits an offense if, during the period beginning one hour before the service begins and ending one hour after the service is completed, the person engages in picketing within 500 feet of a facility or cemetery being used for a funeral service.
(c) An offense under this section is a Class B. misdemeanor.
Added by Acts 2006, 79th Leg., 3rd C.S., ch. 2, Sec. 1, eff. May 19, 2006.