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Prosecutors Decline To Press Charges Against Flagburner:

The Winona Daily News reports that "The Winona County Attorney's Office has declined to press charges against a Winona teen accused of desecrating an American flag by burning holes in it and tearing it to pieces, Police Chief Frank Pomeroy said."

I had noted the arrest last week, and I'm glad the charges have been dropped, but I also continue to fault the police department for arresting the flagburner in the first place. Thanks to Joe Veenstra for the pointer.

Related Posts (on one page):

  1. Prosecutors Decline To Press Charges Against Flagburner:
  2. "Teen Cited for Destroying U.S. Flag":
ARCraig (mail):
It's there job to enforce the law, not to actually know it! Duh!
9.22.2008 5:50pm
ARCraig (mail):
there=their

Preview, preview, preview.
9.22.2008 5:51pm
EH (mail):
Big surprise, but the purpose was served.
9.22.2008 6:00pm
Anderson (mail):
Doesn't the kid have a pretty much airtight 42 USC 1983 claim?
9.22.2008 6:22pm
Malvolio:
Isn't there some sort of tort when the police detain someone without lawful cause? Given that flag-burning isn't a crime...

Otherwise, police could just jail anyone, charging them with misdemeanor thespianism or sesquipedelianism in the second degree and then letting them out when the judge pointed out that the charges were nonsensical. And then re-arresting them.
9.22.2008 6:28pm
Somedude127 (mail):
I think the distinction to be drawn here is that the law the police thought they were enforcing would warrant this fella's arrest. That the prosecutor chose not to prosecute doesn't make the 42 USC 1983 airtight or the wrongful arrest tort that appealing.

That the law the police were enforcing is unconstitutional is an open question. That law has not been challenged and the question of its validity not settled. (Assuming this statute isn't exactly like the flag burning laws already invalidated by SCOTUS- I know giving the local law makers the benefit of the doubt on this is dubious.)

There's also the question of whether the kid has the means or the knowledge to bring the law suits that might be applicable. He likely doesn't know his rights to bring these kinds of suits, or if he does he might have a hard time finding an attorney to take it on a contingency. I can't say I'd be jumping at the chance to bring this one.

Sad fact of the matter is local police often arrest folks under dubious pretenses, charges are then dropped or never filed, and the folks locked up are left without remedy.
9.22.2008 6:37pm
Oren:

Doesn't the kid have a pretty much airtight 42 USC 1983 claim?

Yup. He's got an airtight lock on a $1 jury award too.
9.22.2008 6:38pm
Dilan Esper (mail) (www):
That the law the police were enforcing is unconstitutional is an open question. That law has not been challenged and the question of its validity not settled. (Assuming this statute isn't exactly like the flag burning laws already invalidated by SCOTUS- I know giving the local law makers the benefit of the doubt on this is dubious.)

You are right about the issue of whether there was probable cause for arrest on other charges being a potential roadblock to a 1983 action.

But you are not right about the flag burning charge. Anderson v. Creighton does not require a Supreme Court holding on an identical law to defeat qualified immunity. It's generally accepted and known that laws against flag burning are unconstitutional. The courts are likely to find that right clearly established and are not likely to accept claims that the cases are distinguishable.

Further, before you could conclude that the right wasn't clearly established, you would have to not only persuasively distinguish the two controlling Supreme Court cases in this area, but also any lower court cases that bear on the issue. A law can be clearly established at the circuit level (or at the state supreme court level, if the 1983 action were brought in state court) as well.
9.22.2008 7:26pm
R Gould-Saltman (mail):
"There's also the question of whether the kid has the means or the knowledge to bring the law suits that might be applicable. . . . . Sad fact of the matter is local police often arrest folks under dubious pretenses, charges are then dropped or never filed, and the folks locked up are left without remedy."

Renault: "I'M SHOCKED! SHOCKED to find that this is going on!"

My recollection** is that part of the rationale for the Warren-era expansion of "exclusionary rule" type remedies was a recognition of the frequency of this sort of police conduct, added to the facts that most of those "pestered", (for lack of a better word) by local police were poor, that the "pestering" was not uniformly distributed by race or class, and that some percentage of them were guilty of SOME offense or other, whether or not it had anything to do with why the beat cop's hassling them.

The net effect of this was that the possibility of "the hassled" bringing successful lawsuits was sufficiently small as to act as no real deterrent to local law enforcement; the court then sought other ways to "disincentivize" this sort of police conduct.


(**and I'll defer to the many posters more qualified than me, including a bunch who get paid to teach crim pro and con law)
9.22.2008 7:46pm
whit:
While I think the police were wrong in arresting this kid, again the REAL problem lies with the legislature.

THEY make laws, and if this law is OBVIOUSLY unconstitutional (as claimed), then it is their DUTY to repeal that law. Let's remember - Cops (executive branch) enforce law, legislature MAKES law. Judiciary has some purpose, but I forget what it is :)

Seriously, when I was back east, in MA, there were still law in the penal code such as "Blaspheming the Name of God", "Adultery" etc.

Now clearly, no cop in his right mind is going to arrest somebody for the CLEARLY UNCONSTITUTIONAL law called "blaspheming the name of god." But since the law clearly was/is unconstitutional, why don't the legislators REPEAL those unconstitutional laws? Answer: usually because they are cowards. After all, who wants to be on record as the guy who introduced a motion to repeal a law PROTECTING THE NAME OF GOD...

jeez.

Off the top of my head, I'm not aware of any laws in WA state that are clearly unconstitutional. There are probably some obscure ones I am not aware of. 99% of the time we arrest for bread and butter stuff- assault, rape, robbery, burglary, etc.
9.22.2008 8:49pm
whit:

My recollection** is that part of the rationale for the Warren-era expansion of "exclusionary rule" type remedies was a recognition of the frequency of this sort of police conduct, added to the facts that most of those "pestered", (for lack of a better word) by local police were poor, that the "pestering" was not uniformly distributed by race or class, and that some percentage of them were guilty of SOME offense or other, whether or not it had anything to do with why the beat cop's hassling them.

The net effect of this was that the possibility of "the hassled" bringing successful lawsuits was sufficiently small as to act as no real deterrent to local law enforcement; the court then sought other ways to "disincentivize" this sort of police conduct.



all well and good but totally irrelevant. the facts are this. there is a law in this jurisdiction prohibiting flag burning (that i happen to believe is unconstitutional.) The cops enforced that law. as i said, if the law is so clearly unconstitutional WHY DOESN'T THE LEGISLATURE REPEAL THE LAW?

This is not a case of police misconduct or any such stuff addressed by the rationale behind the exclusionary rule (preventing misconduct), unless your claim is that cops who honestly enforce a law placed on the books BY THE LEGISLATURE are in the same class as those who "pester" people for no reason.

again, so typical. if the law is constitutional, the onus, the responsibility, the burden is on the LEGISLATURE to repeal it.

but it's NEVER the legislature's fault.

not one post i have seen even addresses this issue, which to me is the PRIMARY issue. they MAKE laws. if they make an unconstitutional law, and it's so obvious the law is unconstitutional, then THEY are the one's primarily at fault here.
9.22.2008 8:55pm
Dilan Esper (mail) (www):
By the way, I totally sympathize with whit's point about cops being put in a bind by the legislatures enacting clearly unconstitutional laws. Our system maintains that the officer is supposed to obey clearly established constitutional law and disregard the unconstitutional statute (on pain of a damages award), but there's no doubt that whenever the legislature does this, they put the officer in a bad situation.
9.22.2008 9:42pm
whit:
right, and like i said, I am not saying the cops are w/o fault. I am saying the legislature is at much greater fault AND they have a method to remedy (repeal the law) and they are remiss if they don't do so.

Note also that (as i understand it), the legislature can suffer no pain of damages for passing unconstitutional law, or even refusing to repeal unconstitutional law, but a cop can face damages for enforcing an unconstitutional law.

interesting that.
9.22.2008 10:22pm
Malvolio:
I totally sympathize with whit's point about cops being put in a bind by the legislatures enacting clearly unconstitutional laws.
There's no "bind" here. Obviously, it would be more convenient for the police if the legislature did its job; of course, it would be nice if criminals stopped breaking the law.

Since neither of those things are going to happen, we need police who take their (undoubtedly difficult) jobs seriously. Arresting someone for his political opinions is not taking policing seriously.
9.22.2008 10:24pm
whit:

Since neither of those things are going to happen, we need police who take their (undoubtedly difficult) jobs seriously. Arresting someone for his political opinions is not taking policing seriously.



criminalizing (unconstititutionally) someone for expressing political opinions is not taking legislating seriously. Not repealing same law(s) when you KNOW they are unconstitutional is not taking legislating seriously.

i have no statistics to back this up, but i strongly suspect a much greater %age of legislators are lawyers, and should thus have a greater base of knowledge to draw from.

also cops, by the nature of their job, are expected to often act quickly to quell acts in progress. legislators have the luxury of RESEARCHING the constitutionality of a proposed law BEFORE they pass it.

again, the much more culpable parties (from any rational sense) should be the legislators.


hth
9.22.2008 10:39pm
Philistine (mail):

Off the top of my head, I'm not aware of any laws in WA state that are clearly unconstitutional. There are probably some obscure ones I am not aware of.


How about RCW 9.86.030

"Desecration of flag.

(1) No person shall knowingly cast contempt upon any flag, standard, color, ensign or shield, as defined in RCW 9.86.010, by publicly mutilating, defacing, defiling, burning, or trampling upon the flag, standard, color, ensign or shield.

(2) A violation of this section is a gross misdemeanor."

The operative definition covering US and Washington State flags.
9.22.2008 10:39pm
whit:
thanks for the reference. and needless to say i would NOT arrest anybody for this.

Common sense and all.
9.22.2008 11:37pm
whit:
actually, forgot to mention. During N30 and WTO I saw several instances of that "law" being violated. And no, nobody was arrested for it.
9.22.2008 11:38pm
Ricardo (mail):
I'm a layman but it seems to me that police departments have the obligation to train officers on the basics of the Constitution. Trying to get officers to understand that the U.S. Supreme Court says flag burning is constitutionally protected is not only unreasonable, it's extraordinarily simple compared to the training I can only imagine police have to undergo.

Departments who fail to give officers this training ought to pay out to those they wrongfully arrest which would keep their incentives in line with keeping this training up to date and comprehensive.

Again, it seems to me telling police to ignore someone who is burning a flag in public (unless there is some municipal ordinance against setting fires in public) is downright simple compared to enumerating the situations in which different kinds of force are permissible, under what circumstances you can engage in a high-speed chase, etc. And when a Supreme Court ruling affects the way police can do their jobs, it seems absolutely critical that this information filter down to the rank-and-file ASAP instead of waiting around for the legislature to amend the relevant statutes.
9.23.2008 12:47am