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Police Unclear on the First Amendment,

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.

JRL:
It used to be that flying the American flag upside down was a distress signal. I wonder if they could enact a law making it illegal to fly it upside down on those grounds, like making a false 911 call.
7.27.2007 9:07pm
Owen Hutchins (mail):
And I should be forbidden from flying my Pirate Flag during parties, on the grounds that I am making terroristic threats.
7.27.2007 9:51pm
Enoch:
Sounds like these people are the real "Little Eichmans". =)
7.27.2007 9:56pm
vinnie (mail):
JRL is partially correct. Flying the flag upside down IS a distress call. Disturbing the peace at a minimum.
7.27.2007 10:09pm
Harvey Mosley (mail):
IANAL, but I would expect this to be protected speech. As for the other charges, it should not be against the law to resist arrest if the reason for the arrest is obviously unconstitutional. (I know, who decides the obvious part? How about "I know it when I see it?")
7.27.2007 10:20pm
Steve:
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.
7.27.2007 10:33pm
Eugene Volokh (www):
Steve: It's not exactly a secret that the Court has held that burning a flag is constitutionally protected speech. You'd think that before deciding to enforce a ban against attaching things to flags -- not identical to flagburning, but not vastly different (and, if anything, less potentially harmful, since no possibly dangerous fire is involved) -- they'd have called their friends at the county prosecutor's office to check, no?
7.27.2007 10:36pm
TRE:
When I hear shit like this I wonder if these kind of people don't have a point. Police officers should not be showing up at your house at 8:45 to investigate and arrest you for flag complaints
7.27.2007 10:44pm
nedu (mail):
Making a false distress call should not be considered protected speech, but at the same time, neither is an internationally recognized signal "desecrating" an American flag.

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.
7.27.2007 10:48pm
e:
I'm with Steve on this.

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.
7.27.2007 10:56pm
Mike Friedman (mail):
Mr. Volokh,

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
7.27.2007 11:09pm
Peter Young:
And they call it "free" speech. As long as the local dufus in law enforcement remain free to enforce their own notions of what is legitimate expression, controversial speech is very costly, even if all charges are eventually dropped. You get hassled, roughed up and arrested, you get resisting arrest and assault on a peace officer charges tacked on for good measure although they're likely contrived or at least exaggerated, you have to post bond, you have to secure a lawyer, you have to undergo the anxiety that attends any criminal prosecution.

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.
7.27.2007 11:12pm
harmon:
Well, I try not to believe what I read in the papers, but these people start out by displaying a provocative message, and then complain when someone gets provoked. Then they refuse to identify themselves to the cops, and resist arrest. I don't think the flag or free speech has very much to do with this situation. Face it, these people are dopes.

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.
7.27.2007 11:40pm
Shangui (mail):
Steve et al.,

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?
7.27.2007 11:51pm
Owen Hutchins (mail):

As for the other charges, it should not be against the law to resist arrest if the reason for the arrest is obviously unconstitutional.


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.
7.28.2007 12:05am
Steve:
You'd think that before deciding to enforce a ban against attaching things to flags -- not identical to flagburning, but not vastly different (and, if anything, less potentially harmful, since no possibly dangerous fire is involved) -- they'd have called their friends at the county prosecutor's office to check, no?

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?
7.28.2007 12:06am
gs:
More here. A follow-up in the Asheville Citizen-Times is here.
7.28.2007 12:37am
Lev:
My two favorite types of flag desecration are:

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.
7.28.2007 1:21am
e:
Peter Young - I appreciate your anger, but I'm not sure you are accurate in saying that the police are acting only on their "own notions." I think they were backed by statute. Anger toward the statute might be righteous, but is misdirected.
7.28.2007 1:37am
Chico's Bail Bonds (mail):
Police are supposed to know which kinds of criminal laws are unconstitutional. It's part of the their job. Most police departments don't just find people off the street, hand them a gun and a badge and tell them to "have at it." Police officers get a basic education in the laws of the land, including the Constitution.

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.
7.28.2007 1:42am
e:
Shangui - Your example laws (legal racism, etc.) should be removed from code if/where they remain. I don't expect a rookie cop to have much appreciation of history, but I do expect him to do his best to diligently follow the laws. Not research them. Blame for bad laws lies elsewhere. Ideally prosecutors would have the luxury of resources and time to head off enforcement of "bad law" pending legislative action, but I generally expect that reality will instead require education to prevent numerous charges where there is an obviously (to a lawyer) bad law. Sorry, but those thinking that cops should have a greater sense of constitutional developments are unrealistic and forget their privilege of education and blessing of brains.
7.28.2007 1:47am
midlantan (mail):
Steve, harmon, etc -- Please post your full names and addresses. You are in violation of various federal laws, and I will be accompanying a sworn police officer to arrest you in your homes. Please identify yourselves immediately.

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?
7.28.2007 1:54am
PatHMV (mail) (www):
Right or not, police officers are required to know what actions have been clearly established as unconstitutional by the Supreme Court. If they behave in a manner previously held unconstitutional by the Court, they are subject to liability. I expect a section 1983 shortly, which the county will settle promptly because liability is pretty obvious.
7.28.2007 1:57am
PatHMV (mail) (www):
As for identifying themselves to the police, they were IN THEIR OWN HOME. The police had no probable cause to believe that they were home invaders or anything. Since when must a citizen identify himself to a police officer who invades his private property without a search warrant?
7.28.2007 1:59am
James M:
Welcome to my hometown.

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.
7.28.2007 2:18am
Dilan Esper (mail) (www):
I don't buy that flying the flag upside down isn't protected speech either. I realize that the people I like to call flag scolds-- i.e., those who have nothing better to do than to tell the rest of us how we must fly, store, fold, and dispose of our flags-- contend that the flag must only be flown upside down as a distress signal. But that doesn't mean this is a commonly used distress signal. Indeed, I bet that an upside down flag would be even more ignored than a car alarm in a parking lot.

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.)
7.28.2007 2:37am
John McCall (mail):
Look, the deputy learned about this statute somewhere, yes? Presumably he doesn't just read the unannotated North Carolina code for fun. Whatever source he used (or the source's source, whatever --- at some point, a real lawyer ought to be involved) has a responsibility to note the probable invalidity of the statute.
7.28.2007 2:54am
Tek Jansen:
I have never heard that an upside-down flag is code for a distress signal. That sounds like a sea-faring tradition, and if they were sailing I could understand action being taken against a false alarm. Since they were at home, it's pretty clearly a protected political statement.
7.28.2007 2:55am
David M. Nieporent (www):
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.
Wait a minute. Presumably cops don't memorize the entire state and local criminal code, do they? So how do they know what's illegal, and what to arrest and charge people with?
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.
I would think that anybody who could read would be familiar with it. This isn't an esoteric provision of ERISA 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.

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?
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.
7.28.2007 3:00am
Matt Caplan (mail):
7.28.2007 3:33am
Steve:
Right or not, police officers are required to know what actions have been clearly established as unconstitutional by the Supreme Court. If they behave in a manner previously held unconstitutional by the Court, they are subject to liability.

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?
7.28.2007 3:59am
Ed Darrell (mail):
Flag etiquette books — see the Boy Scouts and Girl Scouts for examples — say an upside-down flag is a distress call. It seems to me there is an obligation of authorities to check out such a call, but political activity ought to be obvious even to a cop.

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?
7.28.2007 5:54am
serns:
If police aren't pursuing a crime-in-progress, or executing a warrant (search or arrest), I'm thinking (limited by my non-lawyer estimation of things) they can't legally come in unless invited. So then if there's no rationale for an arrest (and I believe almost any officer would know that was the case), I'm not convinced even slamming the door on a hand is unlawful, since the hand doesn't have any right to be blocking the doorway (that is, forcing entry after, for instance, I crack the door to see what they want). A 'bad cop' with a grudge doesn't have the right to enter my home, and this sounds like that, although the grudge might have come from a higher level, putting the officer unfortunately in the middle. But, if Our Soldiers in Iraq are expected to disobey unlawful orders, our local law enforcement should be similarly constrained.
7.28.2007 5:55am
David M. Nieporent (www):
Tell me, do you make these sorts of absurd pronouncements concerning every 5-4 decision of the Supreme Court?
No; just ones that are not only clearly demanded by precedent and which are so controversial that they spawn repeated bouts of hysteria from politicians in an attempt to overturn them.
7.28.2007 7:15am
Philistine (mail):
Do those saying the officers couldn't be expected to know of the widely-publicized Supreme Court decision on flag-burning think the converse works: If a suspect isn't aware of the law he is accused of breaking, he gets off?
7.28.2007 10:25am
bornyesterday (mail) (www):
Ok, first I would like to mention that Asheville is probably the single most liberal area in North Carolina after Chapel Hill. So there are any number of people who have displays protesting against Bush et. al.

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.
7.28.2007 11:04am
Wilson:
I think every community in the US should make it illegal to display a yellow ribbon or POW/MIA flag. The police in each locale would then be bound by oath to enforce the ban until a federal court struck down their specific law. It's not the police's job to make inferences about constitutionality, after all.
7.28.2007 11:24am
PatHMV (mail) (www):
Please tell me that none of the "distress" commenters on this thread truly believe that this was the motivation of the deputies in question.

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.
7.28.2007 11:26am
Chico's Bail Bonds (mail):
"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."

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.
7.28.2007 1:13pm
John McCall (mail):
The North Carolina General Statutes form the code of North Carolina; they do not form the law of North Carolina. The Law directly incorporates controlling court opinions, etc., because that is how the Law works. Police officers swear to uphold the Law, and if police officers want to know what the Law is, they had damn well better consult a lawyer, just like everyone else in the country.
7.28.2007 2:45pm
JunkYardLawDog (mail):
After reading the linked press reports provided by a commenter above, it seems to me that the officer did quite literally break into their home by smashing the glass and reaching in and unlocking the door. The officers' claims that the glass was broken when the door was slammed are LIES Testimony of witnesses who viewed the event and the facts themselves show the officer(s) are lying at a minimum regarding how the glass sidelight by the door was broken. This calls into question the veracity of the officers entire account of things.

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"
7.28.2007 2:47pm
Another Kevin (mail):
While flag etiquette says that an inverted flag is a distress call, I don't know of any case where that is actually used, because ships in distress will use the international signal flags so that their calls will be (a) correctly interpreted by non-US vessels, and (b) give specific information about the problem. Rather than an inverted ensign, they will likely fly V (I require assistance), NC (I am in distress and require immediate assistance), or a specific signal such as AE (I am abandoning ship), or CB6 (I have a fire aboard and require immediate assistance).
7.28.2007 2:58pm
scote (mail):
Well at a least there is a decision to go on re; the flag "desecration," since to me people are clearly responding to the "message" or speech content of flag "desecration." This is rather clear since the anti-flag burning crowd would presumably also be the "you should burn your flags" (as per the flag code) to respectfully dispose of them. This is ironically also true for bibles.

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.
7.28.2007 3:31pm
Peter Young:
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.

Let's not rush to judgment on this. This is from a newspaper account linked above:


However, the Kuhns' account is backed up by Jimmy Stevenson, who was working with Ace Hardwood Floors nearby and asserts that he saw Scarborough break down the door.

"I saw that one cop [Scarborough] pull up and I saw those people come out on the porch and start talking to him," Stevenson said. "They took their flag down, asked the officer to leave and closed the door. Then he started kicking the door, he kicked it about five or six good times, then he laid right into it. After he got done kicking it, he broke the window out -- I saw him hit the window."

Deborah Kuhn says that Scarborough then "pursued my husband into the kitchen, they were scuffling, [and] Mark was trying to get away from him. He pulls out his billy club and I call 911 and say that an officer has broken into our house and is assaulting us."

Scarborough sustained a cut to his arm when the window broke and Mark Kuhn had several cuts on his face from the scuffle with Scarborough.

"I was just trying to defend myself and back away from him," Kuhn said. "They never, ever told us why we were being arrested until we were in jail."

Deborah Kuhn asserted that no warrant was displayed or permission asked to enter the house. After calling 911, she says, she ran outside and began screaming for help


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.
7.28.2007 3:43pm
Peter Young:
The second news story I linked to in my message (and also linked in someone else's earlier message) is here.
7.28.2007 3:46pm
Fub:
JunkYardLawDog wrote at 7.28.2007 1:47pm:
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.
Or maybe they realize that discretion is sometimes the greater part of valor. Maybe they believe that if they sue, and especially if they prevail, that they'll have to leave the county or all the other "nutballs" on the force or off will make an ongoing mission turn their lives upside down.

After all, one already did, and according to the news reports he has some similar "nutball" friends who put him up to it.
7.28.2007 4:39pm
PatHMV (mail) (www):
Fub, we shouldn't accept a society where people are discouraged from exercising their legal rights against abusive government officials for fear of violent retaliation by citizen neighbors.
7.28.2007 6:14pm
JunkYardLawDog (mail):
Peter Young, the quote from me and the excerpt from the news article, which I used to form my stated opinions aren't in conflict. I stated the officer lied and the officer broke the glass sidelight. There was a struggle at the door, the witnesses seem to indicate this, and my guess is as I stated that the officer went into a rage after his hand got pinched but not slammed in the door and that's when he broke the glass sidelight and broke into the home. I think the officer(s) have lied to cover themselves and the Kuhn's may have lied a little or stretched things a little in their favor, and I think they realize this and that's why they aren't going to sue. However, as one commenter noted that just may be a legal strategy till the criminal charges are dropped. However, if they don't ever sue, then I'd say the reason is that they know they bear some responsibility for the escalation of things to the point the officer went nuts. However, that said I believe the officer(s) are the bigger liars of the opposing parties and the officer should be disciplined and possibly fired for his conduct in this matter. The Kuhns probably bear some culpability here in how they reacted to the officer, but they are less culpable than the officer by far.

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"
7.28.2007 6:41pm
John Herbison (mail):
The concept of flag "desecration" has always struck me as a bit curious, at least in this country. When was the American flag ever made sacred to begin with?
7.28.2007 8:13pm
David M. Nieporent (www):
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?
No. For one thing, no such duty exists. Some domestic violence statutes carry with them "must arrest" policies; other laws do not.

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.
7.28.2007 8:25pm
Fub:
PatHMV wrote at 7.28.2007 5:14pm:
Fub, we shouldn't accept a society where people are discouraged from exercising their legal rights against abusive government officials for fear of violent retaliation by citizen neighbors.
I hope I didn't give the impression that we should accept that. But people often do tolerate it.

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.
7.28.2007 9:21pm
sailordave:
FYI, the use of an upside-down flag as a distress signal _is_ serious, and is taught in just about any serious safe boating book, not just in flag etiquette books, although it is a bit old fashioned and not in COLREGS. Contra "another kevin", most boats don't carry a full set of signal flags, nor does COLREGS recognize a "V" flag as a distress signal.

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.
7.29.2007 3:22pm
ReaderY:
There's always the possibility that the new conservative majority means the decision will be reversed.

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.
7.30.2007 4:27am
whit:
"And in any case, as was noted above in this thread, if a cop has a question, he can call the prosecutor."

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
7.30.2007 9:05am
Waldensian (mail):
I believe the practice of flying of a flag upside down as a distress signal is considered sort of "old-timey" (that's official language there). One problem is that many flags don't really look that different upside down. This one, for example.

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."
7.30.2007 6:03pm
Jeremy (mail):
The statute was struck down in 1971 by a district court. Like most states, the legislature didn't bother to update the statute. The state supreme court didn't rule on it though. The same system happens through out the United States.
It appears that the cop was in the wrong.
7.31.2007 10:35am