N.C. flag law rarely enforced

[dualsmp]

It's commonly known that flying a flag upside down is a signal of distress, however if you live in NC they come arrest you anyways. :frown:

Brief explanation of an upside down flag here.

http://carolinamountains.com/a...ticle?AID=200770726111


N.C. flag law rarely enforced
by Mike McWilliams
published July 27, 2007 12:15 am
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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.

?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.

 

[sandorski]

The idea that a Flag can be desecrated is ridiculous. Idolatry of the worst order.

 

[dmcowen674]

Originally posted by: dualsmp
It's commonly known that flying a flag upside down is a signal of distress, however if you live in NC they come arrest you anyways. :frown:

Brief explanation of an upside down flag here.

North Carolina, I am not surprised.

Too bad the South just doesn't secede and get it over with.

 

[CitizenKain]

I hope this ends with the cop who did this thrown off the force, the town sued for hiring such a idiot as that officer and the law changed.

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.

Nice too see a soldier standing up for the ideals of this country. /sarcasm

 

[Modelworks]

Originally posted by: dmcowen674

North Carolina, I am not surprised.

Too bad the South just doesn't secede and get it over with.

I live in NC and you have to understand the politics around here now.
In the area I live in we have 4 major bases that supply troops to iraq.
Fort Bragg, Camp Lejeune, Cherry Point, Seymour Johnson AFB.

While I can't agree with arresting the man for whatever he did with the flag, I think he got what was coming to him.

The people around here now are not happy to say the least with the war.
I know a lot of people see the nightly news and see some more soldiers died in iraq and then they get on with there life.

Its a totally different thing though when its every day in the newspaper, people that you know locally, friends, funerals that you drive by. Being so close to the bases it makes it harder because you hear about it every day.

I'm ex navy and I quit going to the bases , primarily because it was so depressing.

Anyone who lives in this area and openly discraces the flag or the troops in iraq are pouring gasoline on a fire they won't be able to put out.

 

[dmcowen674]

Originally posted by: Modelworks

Originally posted by: dmcowen674

North Carolina, I am not surprised.

Too bad the South just doesn't secede and get it over with.

I live in NC and you have to understand the politics around here now.
In the area I live in we have 4 major bases that supply troops to iraq.
Fort Bragg, Camp Lejeune, Cherry Point, Seymour Johnson AFB.

While I can't agree with arresting the man for whatever he did with the flag, I think he got what was coming to him.

The people around here now are not happy to say the least with the war.
I know a lot of people see the nightly news and see some more soldiers died in iraq and then they get on with there life.

Its a totally different thing though when its every day in the newspaper, people that you know locally, friends, funerals that you drive by. Being so close to the bases it makes it harder because you hear about it every day.

I'm ex navy and I quit going to the bases , primarily because it was so depressing.

Anyone who lives in this area and openly discraces the flag or the troops in iraq are pouring gasoline on a fire they won't be able to put out.

Interesting develops as of late with soldiers here lashing out.

Americans have been very suportive of the military during this false war unlike Vietnam.

However that support can errode with this kind of conduct.

 

[dualsmp]

The flag was desecrated long ago. It's right under your nose.. and most never noticed. Look in any court room or in any bank. In fact it might be on a few uniforms if you look carefully. There won't be any protests or outrage.. just silence. Shhh.

 

[StageLeft]

I have not read thread but would be surprised if we don't already have at least one of each of the following posts:

1) "So much for free speech!"
2) "Good! If you disrespect a flag, you should go to jail for being an unpatriotic peck!"

Am I right?

EDIT: Yes, I was on 1) and close on 2)

EDIT @2: BTW, I agree with 1)

 

[CitizenKain]

Originally posted by: Modelworks


I live in NC and you have to understand the politics around here now.
In the area I live in we have 4 major bases that supply troops to iraq.
Fort Bragg, Camp Lejeune, Cherry Point, Seymour Johnson AFB.

While I can't agree with arresting the man for whatever he did with the flag, I think he got what was coming to him.

The people around here now are not happy to say the least with the war.
I know a lot of people see the nightly news and see some more soldiers died in iraq and then they get on with there life.

Its a totally different thing though when its every day in the newspaper, people that you know locally, friends, funerals that you drive by. Being so close to the bases it makes it harder because you hear about it every day.

I'm ex navy and I quit going to the bases , primarily because it was so depressing.

Anyone who lives in this area and openly discraces the flag or the troops in iraq are pouring gasoline on a fire they won't be able to put out.

It's always the women's fault when she gets raped, she deserved it right?

 

[Fern]

Originally posted by: dmcowen674

Originally posted by: dualsmp
It's commonly known that flying a flag upside down is a signal of distress, however if you live in NC they come arrest you anyways. :frown:

Brief explanation of an upside down flag here.

North Carolina, I am not surprised.

Too bad the South just doesn't secede and get it over with.

Hehe, generalize much?

For a little perspective, Ashville is known as the "San Francisco of the East". It's a very pretty town built up on some mountain peaks and has a number of (internationally) famous resorts etc.

This is merely another case of a very old law remaining on the books. Many states have 'em, they just never cleaned up the statutes. Seems like a rookie officer (recently in Iraq) took a little too much "iniative". As previous incidents demonstrate, had the complaint gone through the normal channels, it would not been acted upon.

I'm not quite sure why this story is receiving so much attention.

Fern

 

[piasabird]

Flying the flag upside down is like calling 911 for no reason.

 

[Atomic Playboy]

Originally posted by: piasabird
Flying the flag upside down is like calling 911 for no reason.

Tell me about it. This one time I was mugged in broad daylight. This guy took everything, my wallet, watch, cell phone, even my keys. Thank God he didn't take my flag. Thinking fast, I turned that thing upside down and waved for all I was worth. Sadly, the only response I got was the policeman arresting me for flag desecration....

I'm an educated man with a college degree. I'd estimate that I'm in the top 10 percent of Americans in terms of intelligence. I have never heard about flying a flag upside down being a distress call. I'm willing to bet that most Americans haven't either. I mean, when was the last time this was used, when semaphore was still a valid means of communication?

Maybe we should start charging people who call 911 for no reason with desecration of a phone.

 

[jackschmittusa]

Abuse of police powers by an over-zealous officer. An example of a mis-guided, emotional reaction by an officer who would seem to have little regard for the "protect and serve" ethos of his profession. A case could also be made that the state bears some responsibility for failing to remove a statute nullified by the Supreme Court.

 

[Nik]

Flying a flag upside down is, and always has been, a sign of distress. It's oldschool, but it's still used.

 

[dmcowen674]

Originally posted by: Atomic Playboy

Originally posted by: piasabird
Flying the flag upside down is like calling 911 for no reason.

Tell me about it. This one time I was mugged in broad daylight. This guy took everything, my wallet, watch, cell phone, even my keys. Thank God he didn't take my flag. Thinking fast, I turned that thing upside down and waved for all I was worth. Sadly, the only response I got was the policeman arresting me for flag desecration....

I'm an educated man with a college degree. I'd estimate that I'm in the top 10 percent of Americans in terms of intelligence.

I have never heard about flying a flag upside down being a distress call.

I'm willing to bet that most Americans haven't either. I mean, when was the last time this was used, when semaphore was still a valid means of communication?

Maybe we should start charging people who call 911 for no reason with desecration of a phone.

It's been brought up many times over the years here.

It's used as sign when folks feel the country is in distress.

It was very common to see during the vietnam War era and during Watergate in New York when I was growing up.

 

[1EZduzit]

Originally posted by: dualsmp
The flag was desecrated long ago. It's right under your nose.. and most never noticed. Look in any court room or in any bank. In fact it might be on a few uniforms if you look carefully. There won't be any protests or outrage.. just silence. Shhh.

Now that I wasn't aware of.

 

[blackllotus]

Originally posted by: piasabird
Flying the flag upside down is like calling 911 for no reason.

Um... ok maybe in Illinois

 

[heyheybooboo]

Charges dropped in flag desecration case

North Carolina?s statute was declared unconstitutional in a 1971 ruling by the District Court of Western North Carolina.?Enacted during a period of national chauvinistic fervor, it is an uncommonly bad statute,? Circuit Judge James Craven Jr. wrote in the ruling.?Despite our respect, and indeed love, for these symbols of state and nation, we are compelled to hold the statute unconstitutional.?

The Asheville City Police were the first law enforcement agency notified. They didn't serve citations. What they did was consult their attorney and find that there was no valid criminal law they could use to prosecute. They specifically told the family that their display of the flag was legal.

It seems that Deputy Brian Scarborough, acting on a complaint from a fellow National Guardsman, acted on his own in approaching the family. Deputy Scarbourough had recently returned from Iraq. The family removed the flag, went inside their house and closed the door.

A witness, a workman in the area, saw the Kuhn's take down the flag per the request of the deputy, then enter their house and close the door. After the door was closed, the deputy kicked it with his boot several times, then punched through the glass window with his fist to open the lock.

The physical evidence supports this account, from the blow pattern of the broken glass to the injuries on Deputy Scarborough's hand which show that it was in a closed fist position when it was scratched.


We might be a wee bit wacky down heah in duh Suthern Ap'latch-eee-uh mao-tins but we won't let those pesky facts get in the way of a good story.

And I reckon Deputy Scarborough is another unfortunate casulty of The Bush War . . .

 

[dmcowen674]

Originally posted by: heyheybooboo
Charges dropped in flag desecration case

North Carolina?s statute was declared unconstitutional in a 1971 ruling by the District Court of Western North Carolina.?Enacted during a period of national chauvinistic fervor, it is an uncommonly bad statute,? Circuit Judge James Craven Jr. wrote in the ruling.?Despite our respect, and indeed love, for these symbols of state and nation, we are compelled to hold the statute unconstitutional.?

The Asheville City Police were the first law enforcement agency notified. They didn't serve citations. What they did was consult their attorney and find that there was no valid criminal law they could use to prosecute. They specifically told the family that their display of the flag was legal.

It seems that Deputy Brian Scarborough, acting on a complaint from a fellow National Guardsman, acted on his own in approaching the family. Deputy Scarbourough had recently returned from Iraq. The family removed the flag, went inside their house and closed the door.

A witness, a workman in the area, saw the Kuhn's take down the flag per the request of the deputy, then enter their house and close the door. After the door was closed, the deputy kicked it with his boot several times, then punched through the glass window with his fist to open the lock.

The physical evidence supports this account, from the blow pattern of the broken glass to the injuries on Deputy Scarborough's hand which show that it was in a closed fist position when it was scratched.


We might be a wee bit wacky down heah in duh Suthern Ap'latch-eee-uh mao-tins but we won't let those pesky facts get in the way of a good story.

And I reckon Deputy Scarborough is another unfortunate casulty of The Bush War . . .

Thanks for the update :thumbsup:

 

[DangerAardvark]

So you can't fly the flag upside-down, but Tom Selleck (Don Frye) can swathe his loins in it?

 

[MrMajestyk]

In Britain it would be hard to tell. Many fly it upside down here and don't even know it.

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