Asheville – Charges against an Asheville couple mark the first use of a 90-year-old North Carolina law on desecration of the American flag since the Vietnam War era, a state court official said Thursday. Even then, police used the law only two times. Back-to-back U.S. Supreme Court decisions since then make it unconstitutional, civil rights experts said.
Staff Sgt. Mark Radford, 105th Military Police Battalion of the North Carolina National Guard, says he alerted law enforcement to the Kuhn's flag display on Brevard Road.
Staff Sgt. Mark Radford, 105th Military Police Battalion of the North Carolina National Guard, understands that the flag display statutes are rarely enforced.
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“It hasn’t been used in so long, we don’t even keep a statistic on it,” said Dick Ellis, public information officer for the N.C. Administrative Office of the Courts in Raleigh.
A Buncombe County sheriff’s deputy acting on a complaint from a fellow National Guardsman issued the charge Wednesday at the Brevard Road home of Mark and Deborah Kuhn.
An ensuing scuffle with the deputy put the Kuhns in custody on charges of assault on a government employee, obstruction and flag desecration, all misdemeanors.
They were released from jail Wednesday afternoon. The Kuhns said they were assaulted by the deputy.
Deborah Kuhn told a 911 dispatcher that Scarborough “has broken into our home and is violating our rights.”
State law prohibits anyone from knowingly mutilating, defiling, defacing or trampling the U.S. or North Carolina flags. The Sheriff’s Office has said the Kuhns desecrated the flag by pinning signs to it, not by flying it upside down.
The Sheriff’s Office will conduct an internal review to determine whether the Deputy Brian Scarborough was right in personally taking action on the complaint, Sheriff Van Duncan said. The usual procedure is to refer the complaint to Asheville police, he said.
“It’s an unfortunate situation involving a very emotional issue,” Duncan said. “But we are going to review it.”
The deputy appeared to have acted correctly after he arrived at the Kuhns’ home, Duncan said.
“If someone is being issued a citation, they must provide ID,” he said.
The arrests came less than a week after Asheville police responded to a separate complaint about the Kuhns’ flag. No citations were issued, and no report was filed, police have said.
Ellis said the only other two flag desecration cases he could find mentioned in state records took place during the Vietman War era — another time when tensions were high over America’s involvement in a war. At least one of those charges was later dropped, Ellis said.
He said he could find no other cases in which the law was used. Constitutional questions
A spirited debate has been brewing since Scarborough arrested the Kuhns on Wednesday following what was initially a flag desecration complaint but escalated into assault and obstruction charges.
The Kuhns, who where hanging an upside-down American flag with signs attached to it on their front porch, said they flew the flag to protest the state of the country. An upside-down flag is recognized as a distress signal. The Kuhns said the signs pinned to the flag were to explain why they were displaying the flag upside down along with a photo of President Bush with “out now” written on it.
Sheriff’s reports show Scarborough, 25, told the couple they were illegally displaying the flag and told Mark Kuhn he would be ticketed. When asked for identification, Kuhn allegedly refused, slammed the door on the deputy’s hand and broke a glass pane, which cut Scarborough’s hand, according to the Sheriff’s Office.
However, the Kuhns said when they closed and locked the door, Scarborough intentionally broke the glass, unlocked the door and entered their home to place the Kuhns under arrest. The Sheriff’s Office said the Kuhns attacked Scarborough by hitting him in neck and face. The Kuhns have denied that allegation.
U.S. Supreme Court decisions in 1989 and 1990, which protected flag desecration as a form of expressive conduct under the First Amendment, raise questions as to the legality of the North Carolina law.
“We believe it’s unconstitutional across the board,” said Katy Parker, attorney for the American Civil Liberties Union of North Carolina. “This was clearly expressive conduct, and I think it makes it an even more egregious violation because this was clearly expressive conduct.”
Noelle Talley, spokeswoman for N.C. Attorney General Roy Cooper’s office, said as far as she knows, the attorney general’s office has not been asked to render a legal opinion on the state’s flag desecration law.
“Only a court can issue legal decisions,” Talley wrote in an e-mail.
Constitutional or not, a flag desecration law is on the books in North Carolina, which is one reason Mark Radford said he decided to alert authorities about the Kuhns’ flag. Radford is a staff sergeant in National Guard’s Asheville-based 105th Military Police Battalion. He has served in the military for 14 years.
Radford said he first noticed the Kuhns’ flag July 20 driving to and from the National Guard unit headquarters. Radford said he is not friends with Scarborough but knows him as a soldier and from seeing him on patrol near the unit headquarters. Radford said Scarborough is not in his unit.
“I’m all about free speech … and to have all of this stuff in his yard, that would be fine. Nobody really cares,” Radford said. “But when you take the American flag … to do that, it’s illegal, but personally, it was disrespectful. I was like, ‘Man, too many people have served under that flag.’”
Radford said the flag raised the ire of several soldiers in his unit. He said he told the deputy about the flag Monday. Whether a law is seldom enforced doesn’t matter, he said.
“The law is the law, and if we don’t follow the rule of the law as a society, where does it go from here?” Radford asked.
Bruce Elmore, an Asheville lawyer and state president of the ACLU, is representing the Kuhns on the criminal charges. Deborah Kuhn said they do not plan to take civil action against the Sheriff’s Office.
Elmore said his clients were simply practicing expressive conduct protected by the U.S. Constitution and upheld by the U.S. Supreme Court. The First Amendment is meant to protect unpopular speech, not popular speech, he said.
“I’m surprised that a National Guard officer and deputies with the Buncombe County Sheriff’s Department are not aware that the Supreme Court has declared statutes which criminalize desecration of the flag unconstitutional when the act is involved in expressing a belief, which this clearly was,” Elmore said.
Chris Cooper, assistant professor of political science at Western Carolina University, said flag desecration has historically been a touchy subject.
“Symbols are pretty important to people, and there are few symbols that represent America as much as the flag,” he said. “People are very comfortable with freedom of speech when it is speech that they agree with, but when it becomes speech we don’t agree with … it is a little bit tougher to swallow.” Jurisdiction
Although sheriff’s deputies are technically within their jurisdiction, law enforcement officials say deputies don’t normally respond to calls within the Asheville city limits. The Kuhns’ home is in West Asheville.
An exact number of calls deputies have responded to in Asheville was not immediately available.
“If we run across a misdemeanor committed in our presence, we can make an arrest,” Chief Deputy Don Reavis said. “It’s not that many times, no. It’s usually as a backup if they (Asheville police) get overwhelmed, then we’ll come in and help them, but we, of course, have jurisdiction throughout the county.”
APD Chief Bill Hogan said the Sheriff’s Office has the right respond to complaints within the city limits if they choose to. APD had been contacted about the Kuhns’ flag July 18, but no citation was issued or report filed. That decision was left up to the officer’s discretion, Hogan said. It’s not known who called in the complaint.
“I think we tread very carefully on issues on constitutional rights,” Hogan said. “This is a very sensitive area on both sides of this issue, and again we tread very carefully, and (I) would even say we err on the side of caution in terms of not wanting to deprive anyone of their rights. But there again in researching this, that officer would have the lawful right as the law now stands to take enforcement action.”
Deborah Kuhn said she has been overwhelmed by the “huge amounts of support” she and her husband have received since their arrests.
“I can’t tell you how many people have called and come by and just all positive,” Kuhn said. “It’s really been an uplifting thing for us.”
Scarborough, 25, started at the Sheriff’s Office in 2003 as a reserve deputy. He was hired full time June 13, after serving seven months in Iraq with the National Guard, Reavis said. Reavis declined a Citizen-Times request to interview Scarborough.
“We’re not going to let him talk to you or any of the media until he talks to the main boss (Sheriff Duncan),” Reavis said.
Poster Comment:
The career of this dumbass cop is now over. The victims are going to get a bunch of money. Right about now, all over the nation, police departments are informing officers to ignore upside flags, unless, of course, they want world-side bad oublicity and to lose a huge lawsuit.