if this Asheville Citizen-Times report is correct:
A couple who said they were protesting the state of the country by flying the U.S. flag upside down with signs pinned to it found themselves in jail following a scuffle with a deputy Wednesday morning.
Mark and Deborah Kuhn were arrested on two counts of assault on a government employee, resisting arrest and a rarely used charge, desecrating an American flag, all misdemeanors....
Arrest reports show Buncombe County Sheriff’s deputy Brian Scarborough went to the Kuhns’ home on 68 Brevard Road about 8:45 a.m. Wednesday to investigate a complaint of an American flag on display after being desecrated.
State law prohibits anyone from knowingly mutilating, defiling, defacing or trampling the U.S. or North Carolina flags. Lt. Randy Sorrells of the Buncombe County Sheriff’s Office said the Kuhns desecrated the flag by pinning signs to it, not by flying it upside down....
The assault and resisting arrest charges may be proper, depending on what the facts are. But the Constitution does not allow punishment for desecrating the flag. U.S. v. Eichman so held as to a federal law punishing anyone who "mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States." And the North Carolina law, "It shall be unlawful for any person willfully and knowingly to cast contempt upon any flag of the United States or upon any flag of North Carolina by public acts of physical contact including, but not limited to, mutilation, defiling, defacing or trampling," is indistinguishable for First Amendment purposes from the law struck down in Eichman.
Thanks to Matt Caplan for the pointer.
As a society, we have a compelling interest in preserving clear channels for distress signals. A lack of readily-aparent usefulness for this particular signal in a suburban environment does not reduce society's interest in maintaining a clearly recognized meaning for the signal, as long as there are some environments where flying a flag upside down remains vital.
Prof V - I do not expect the police to vet every enforcement action through the prosecutors office, though I do expect prosecutors to now review the law before prosecution/dropping the charges, inform the legislature that the law is likely unconstitutional and needs to be fixed, and educate the police to hold off on further enforcement. An apology might be prudent as well. I think the police should trust lawmakers and their due diligence does not extend as far as you may wish. But I'm also in law school because I think the law is too inaccessible to the lay public. The public and even law enforcers should not have to involve lawyers in every decision related to their lives and jobs.
Who should make the decision not to enforce an apparently unconstitutional law that has not been ruled unconstitutional by a court?
I'm pretty sure it should not be the cop on the beat.
I'm not sure if it should be prosecutors - there is prosecutorial discretion, but does a prosecutor have the right to refuse to enforce any law he disagrees with?
Perhaps the State Attorney General?
I'm honestly not sure.
Mike
The flag had notices attached to it explaining why it was flown upside down. Note that the residence where the flag was flown was located within the city limits and the city police already had made a visit inquiring about the upside down flag with no untoward consequences occurring. The later visit that resulted in the arrests was by the County Sheriff's office, which took it upon itself to take on this pressing law enforcement problem although its location was within the city limits. Not that they had no jurisdiction, but they did go out of their way to take it on. The whole thing smells.
It reminds me of the Sixties and Seventies when the police arrested long-hairs left and right for desecrating the flag--carrying it in an unapproved manner (not folded), wearing anything bearing a design resembling the flag and the like. Law enforcement officers who engage in or condone this sort of stuff deserve no respect. They're just bullies in uniform, and they're not fit to be armed representatives of the state.
As for the cops enforcing the law, that's their job. If the dopes had simply accepted the citation, and gone to the hearing, the charges would have been dropped, and the police department would have drawn the correct conclusion that enforcing this particular law was a waste of time.
I hope the judge and prosecutors keep their eye on the ball, which is that you don't get to interfere with the cops when they are giving you a ticket. It doesn't matter that the law is invalid, any more than it would matter if you weren't speeding. Tell it to the judge.
So should cops be arresting people for sodomy? How about miscegenation? Maybe they should make sure no darkies try to vote as well.
I'll agree that cops should not be expected to know the intricacies of constitutional interpretation, by how could someone with a career in law enforcement possibly not know that it is not illegal to desecrate the US flag?
That, on the other hand, would open a whole new can of worms. What is "obvious" to one person may not be to another. Of course, it also depends on what they're going to call "resisting"; I've seen it applied when someone verbally objected to being arrested.
No, I wouldn't expect them to call the county prosecutor's office. I'm rather surprised you would expect the local sheriff's deputy to do such a thing, frankly. For what it's worth, I'm not even confident the county prosecutor's office would have a ready answer concerning the current state of flag-desecration jurisprudence.
Even if the deputy happens to know that the Supreme Court has allowed flag burning, is it really that self-evident that all forms of desecration are treated similarly?
1. The tattered, filthy, rag of a flag on a car antenna
2. The flag decal on the bumper that collects whatever road garbage is thrown up on it.
This is not to say that the police should be able to predict the most technical and intricate areas of law. They should, however, know when a criminal law is obviously constitutional. A law banning someone from "casting contempt" on a flag is just such a law.
Wait, you don't think you should have to identify yourselves? Why not? Does the obligation to obey arbitrary commands by some Beaufort T. Pusser only apply to those poor suckers in NC who disagree with the war/Bush administration/direction of the country?
According to the Kuhns, the officer never attempted to arrest them for the flag desecration charge. He demanded their IDs so that he could write them a summons (Of course, that itself is unconstitutional).
By the deputy's account, he arrested them only after they slammed the door on his hand. By Mrs. Kuhn's own admission (surprisingly, she appeared on a local talk radio show) they were only arrested after refusing to identify themselves on demand, as required, if I recall correctly, by state law, although I can't find that code section right now.
They responded to his demand for ID, Mrs. Kuhn said, by first taking down the flag, and second, by slamming the front door and walking away from it.
harmon's post above is quite correct, though he could have added: After the charges are dropped, the Kuhns could've filed a lawsuit for the civil rights violation. They still can.
Further, even if something is a distress signal, that doesn't rob it of first amendment protection. For instance, if someone made up a poster that said "PLEASE HELP ME!!! George Bush is taking my country down the toilet", that would be using a distress call ("PLEASE HELP ME!!!") but it would clearly be protected political speech. So it is with the upside down flag.
And really, as you can see by my reference to "flag scolds", I think society could do with less people telling civilians that they must handle flags with military precision. That's fine in the military, but in civilian life, people use the flag in all sorts of strange ways, e.g., on pants pockets, sticking off of cars, etc. The fact that such uses are not in conformity with the Flag Code doesn't mean that the intention is not to honor the country. (And, of course, even if the intention is to dishonor the country, it is protected speech.)
Yes. I'm pretty confident that in the inevitable lawsuit, a court would take about 30 seconds to deny qualified immunity to any official who tried to claim it wasn't clearly settled law.
I, for one, hope she changes her mind.
To be clear, I don't disagree at all with this statement. But I'm not surprised in the least if some sheriff's deputy isn't familiar with every detail of what is deemed as "clearly established law."
I don't see how any adult American would not know this. And any lawyer who doesn't know this ought to be disbarred.
Tell me, do you make these sorts of absurd pronouncements concerning every 5-4 decision of the Supreme Court? 40% of Americans think Saddam was involved in planning 9/11, and you're amazed that they don't all know whether flag desecration is constitutionally protected?
The real issue is applying the laws consistently, it seems to me. The U.S. Flag Code also says U.S. flags should be displayed from autos only on a pole mounted on the right front fender, not from auto antennas, not as decals, especially not as rags beaten to death from window-mounted plastic poles. Does this community enforce the anti-desecration language against people who stick flags to their cars?
Check out any 4th of July parade these days — even the local National Guards stick flags on their truck mirrors, or all over the vehicle, in violation of the flag code.
I have yet to see any prosecution for flag desecration done in the politically-correct, "support Bush's war" manner. Does anyone know of such a prosecution?
In the 1970s, a New England American Legion Post flew a U.S. flag upside down, in protest of the nation's policies in Vietnam (the local post wanted more troops, not fewer, not peace talks, or something like that). This only came to light when the local gendarmerie arrested an anti-war protester for a similar act.
Is the law equally applied?
However, if a cop knows that a state statute is being violated, regardless of whether or not it would be ruled unconstitutional if it were taken to court or examined by the legislature, is it not his or her duty to arrest the person who is violating the law? There is a pretty clear division of labor with regard to laws. The legislatures pass laws, the police enforce them, and the courts punish violators and evaluate the rightness of the laws. And some backwater (and Buncombe county is pretty backwater, other than Asheville) sheriff's deputy isn't the person I want to be making judgment calls about the rightness of the laws that it is his job to enforce. If there is fudge room, as with traffic violations, that is cool, but faced with a hostile criminal who is unwilling to cooperate and then resists arrest, I don't expect them to be lenient about anything.
Bornyesterday. No, there's not. Perhaps you wish it to be so, but there's not. It is very, very well established that police officers will be liable for taking action of clearly established Supreme Court precedent, whether the statute stays on the books or not.
Suppose for a moment that this was a right that you like, say a gun right. How useful would your right to carry a gun be if the police could, despite a ruling of the Supreme Court overturning a state's limitation on your right to carry a gun?
Not to mention, this wasn't some real emergency. There wasn't an armed robbery just happened, with police in hot pursuit. Sheriffs offices generally do in fact have attorneys on staff or on retainer to answer questions like this. If they really had been in a cave and missed the whole "flag burning " controversy, the deputies could have waited, with absolutely no risk of harm to anybody.
Nice rhetorical sleight of hand, bornyesterday. I don't expect the police to be lenient on "hostile criminals" either. But in this case, the Kuhns were not "hostile criminals." They were not criminals at all. The police officer should have known that in the first place. The Kuhn's were not asking him to be "lenient." They were asking him to just follow the law to the letter and leave them alone.
It can't be discerned from the press reports whether the door was at any time in contact with the officers hand. It can be discerned for sure that the door was not slammed on the officers hand as the officer contends. If the door were slammed on the officer's hand hard enough to break the side glass the officer would have sustained broken bones and the hand would have sustained visible bruising and swelling of a substantial amount. All that is claimed by the officers is that the slamming of the door on his hand cut the officer's hand. Cutting of the officer's hand is consistent with the eye witness testimony that the officer used his hand to break out the class in order to break into the home. It would seem that the officer was clearly in a rage of anger which led to his improper actions. What isn't clear is whether this officer has such a short fuse that he flew into a rage of mindless anger by merely having these people ignore his verbal commands and slam a door in his face or if his mindless rage was caused by the door merely pinching his hand while he struggled to keep them from shutting the door and causing him some temporary minor pain/discomfort.
Its possible the Kuhns are lying about the door not being in some manner closed against the hand of the officer. Absent info that the officer is a complete nut job who flies into a rage by a mere mental insult to his puffed up ego (there are some officers like that out there), I'd say he flew into a mindless rage of anger after his hand got pinched in the door closing scuffle. Clearly the Kuhns believe they bear some responsibility for the events as they unfolded, otherwise they wouldn't be saying they have no intention of suing. If some nut ball officer damaged my door, broke, my glass side light, roughed me up, arrested me and my wife all without provocation or lawful cause as the Kuhns contend I would be suing for everything I could get which would include getting the deranged mentally incompetent officer off the street before he kills some citizen for insulting him. Since they say they aren't going to do this, the Kuhns clearly feel some responsibility for the officers actions that goes beyond what they have claimed to the police and the press.
Says the "Dog"
On a tangentially related note, a man is being charged for a hate crime for throwing his own personal copy of the Koran in a public toilet. Personally, I think he should be charged with vandalism--I really can't tolerate cretins who mess up our public toilets. But for the most part, I don't think we should have "hate crime" legislation, especially when it is used as a de facto blasphemy law.
Let's not rush to judgment on this. This is from a newspaper account linked above:
And according to another news story, the citizen complaint about the flag came from a member of the local National Guard unit to which the arresting officer also belonged. A man in fatigues--perhaps from the same National Guard unit--had repeatedly passed by the home slowly and yelled Go to jail before the arrest. The Sheriff's Department does not normally investigate alleged crimes within the city limits--and this residence was located within the city--although it claims it sometimes does so in response to citizen complaints. All in all, it looks to me as if this was a put-up job to get these dissidents by any means necessary.
Let's see what decision about suing the Sheriff's Department is made after the issue of criminal charges is resolved. I might not advise my clients to talk about suing while criminal charges are still pending.
After all, one already did, and according to the news reports he has some similar "nutball" friends who put him up to it.
I'm simply saying that these kind of things are usually not entirely one sided 100% bad on one side and 0% bad on the other. Rodney King shouldn't have refused to submit and shouldn't have led the police on a 100mph dangerous car chase, he bore some culpability for what ensued. He seemed to recognize this partial culpability with his can't we just all get along speech. His culpability was far and away overshadowed by the police officers' extreme over-reaction to the provocations of King's law breaking is true, but it doesn't erase the fact that King's actions were part of the mix of things that led to the incident. Same for the Kuhns, but to a much lesser extent for the Kuhn's compared to Rodney King's violent and dangerous illegal activity that was in fact illegal.
Says the "Dog"
For another, it already has been ruled unconstitutional. When the U.S. Supreme Court holds a law unconstitutional, it doesn't examine the federal criminal code and the criminal code in all 50 states and the District of Columbia and make a comprehensive list of each particular section of the code that it is striking down; it sets down a principle. All laws which run afoul of that principle are unconstitutional, not just the single law examined. (Of course, there may sometimes be a question as to whether the holding applies to a particular law, but that question must be in good faith. That certainly doesn't apply here. No non-mentally challenged adult can think that flag desecration laws are constitutional after Eichman and Texas v. Johnson.)
And in any case, as was noted above in this thread, if a cop has a question, he can call the prosecutor.
I just pointed out in abstract the apparent reality from the news accounts: that some guy, who apparently knew the sheriff involved, had complained to police. When police made no arrest, he complained to the sheriff. He also drove by the house shouting epithets before and after the incident. That alone might be enough to intimidate the Kuhns to take no legal action against the sheriff.
However, I'm not aware of any restrictions on displaying nautical distress signals on land. Smoke, visible flame, repeated gunshots, and waving your arms like a bird are also distress signals and thus illegal to use at sea without a good reason, so if the same laws applied on land, good bye fireplaces and hunting!
The difference is that boats are REQUIRED to render assistance to other boats in distress, so a boat flying an upside down flag or with a campfire on its bow would be a major hassle for all the people who responded to it. The same behavior on land doesn't create the same response and thus doesn't disturb the peace.
Relying on precedents...How quaint! The job is to predict what the current Supreme Court will say, which is more and more rarely based on what past Supreme Courts have said not quite to the point where it's only when either the current majority happens to agree with it, or the case isn't important enough to bother with. But getting there.
It's likely the current Court will agree. After all, Scalia and Kennedy were both in the previous majority (although Stephens was in the dissent.) But one doesn't really know. The precedent is a generation old -- old as many precedents the court has overturned -- and its current applicability is as questionable as any of the others.
not really. prosecutors are loathe to say if a law is or isn't unconstitutional and since they generally have immunity ANYWAY...
the person that the police should contact is their department's legal advisor. i've contacted mine on more than one occasion (in 20 yrs of law enforcement) in situations where i saw a law that looked unconstitutional to me. of course, the assumption that any cop should be able to make is that laws on the book in his state ARE constitutional unless they are notified otherwise. when state or federal judgments come down like this, we (officers in my dept.) are notified via either general bulletins or roll call or whatever.
but imo, the burden should still be on the legislature ONCE the scotus declares a law unconstitutional (there is no appeal from a scotus decision) to STRIKE IT FROM THE BOOKS.
"I'm quite shocked that police officers would enforce the law as written on the books, without reviewing and interpreting such cases as U.S. v. Eichmann. One wonders what sort of two-bit constitutional law professor they had at the police academy."
this reminds me of a previous debate here. imo, the cops should have known the state law was unconstitutional. but i'm just saying that cause i actually keep up with this stuff, and *i* know its unconstitutional.
but the real people to blame are the gutless legislators, who KNOWING a law that they passed IS unconstitutional don't have the spine to strike it from the books. most probably because it would look bad.
a cop SHOULD be able to assume that a law, passed by a bunch of legislators (many of whom ARE lawyers), etc. is in fact constitutional. at least UNTIL it is tested. if a court finds it unconstitutional then of course the LAW SHOULD BE STRICKEN, to avoid exactly this situation
some new england states have old laws on the books that are obviously unconstitutional but no state legislator wants to strike them. last i checked (about 20 yrs ago), "blaspheming the name of god" was a crime in Mass.
needless to say, no Mass cop is going to arrest some guy for going "Jesus Christ, this speedtrap sucks"
i am sure this law is broken 10's of thousands of times statewide almost every time the red sox lose by stranding 20 base runners or so
In any event, there's no point to discussing that issue, because there is just NO WAY this incident was prompted by a perceived "distress signal." Puh-leeze.
I also think it's typical to see illegal arrests accompanied by claims of assault or resisting arrest. Just an impression based on watching hundreds of episodes of "Cops."
It appears that the cop was in the wrong.