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

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.

(narrative: he called is buddy, who is a deputy, and texted a picture he took on his cell-phone)

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. (his buddy)

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, and then closed and locked the door.

Scarborough intentionally broke the glass, unlocked the door and entered their home to place the Kuhns under arrest.

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 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.

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.

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.
“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. 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.

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.

sorry, I tried to shorten this article, but I didnt want to be biased and left both sides opinions in it.

fanta.....you know I get bored after 2 lines!!!!

er...it's a piece of cloth. on THEIR property...and it's NOT like they were burning it...or jumping on it and screeching loudly...

I guess its not being patriotic!!! A major sin!!! Quick!!! Release the monkeys!!!!

i hope they sue and get at least a million

geemaneecrickets!!! it only took me 2 hours just trying to respond to any thing!! ARRRGH!!
Fanta...god love ya shugar! I would much rather read the article than spend time typing in sites which most times are not there or gone. After seeing our american flag turned upside down with the mexican flag above it and seeing this at msn during the last rally for the illegals I was appauled. WHO arrested the mexicans who did this to our flag??? No one.
In as much as lots of folks believe its just a piece of cloth our american flag...its also a sign of our LIBERTY. I say that couple deserves the prosecution BUT i dont agree with buddy or bubba johhny law busting thru their front door. I mean get REAL! Thats the swat teams job!!!!
I am also a strong believer that the confederate flag needs to remain a symbol in the south but hey! what do i know!!

why type them in just copy and paste to the address bar

barbie are you a real blonde



just kidding

It is an abomination of the flag I agree, but shouldnt the cops be more interested in getting rid of the meth and crack factories which in turn are killing our children and adults alike????

real criminals might shoot back

YES indeed i am a real blonde adj4u. I had no idea you could c/p that. Thanks for the tip!!!!

hugz

This really brought back memories. Any of you who can, think back to the late 60's/ 70's. There was a time when a news story like this produced NOT A MASS of outrage but a mass of followers.

Hey, if this action gets that kind of attention, LET'S ALL DO IT.

Maybe this kind of peaceful demonstration is more of what we need in this country. Peaceful demonstrations, are only worth while if they are noticed. And if it's a really good peaceful demonstration, the demonstrators will not be the ones who 'start the violent disturbance'.

Therefore, I think it was a great way to peacefully demonstrate to any who witness it, that there is dissatisfaction among the ranks of this population.

It's all about the attention. Attention of notice, by the general public, that gives us the power to take our voice back. To make it heard or seen. This act was not to desecrate the flag, it was, fully and intentionally enacted for the purpose of protest, not against the foundations of this country, but in accordance with the freedom it provides, to show dissatisfaction of the actions of those in power over those freedoms.

This was an act meant to rally, to unite under a symbol, those who feel the same. I feel the same, and if I owned a flag and had a place to fly it, I would also adopt such a stance.

We need to do something, and that something may include beginning with a symbol to unite under. What better symbol than our Flag, that represents freedom, being flown upside down, as if the freedom inside the upright flag, was being drained out of it.

Two things, which are important here:

1.) The NG man, never did call the Sheriff Department. Instead, he made a personal call on his cell-phone to his friend. His friend, Deputy Scarbourgh responded without calling it in to HQ.
In the initial news report, live on TV, the NG guy proudly said this. Speaking before thinking, evidently. Now they are all clamming up about it all.

2.) The neighbors were all in their yards. it was daylight and it obviously caused a commotion, so there were plenty of witnesses.
They were all saying the same thing, that after the people went inside and locked the door, the cop started to leave, got half-way to his car then turned around. He went to the door again, and tried first to kick the door in. When that didn't work, because they had dead-bolted it, he punched the glass with his fist, reached in and unlocked the door.

The news camera's showed the glass on the inside of the house, and it was obvious that it had been punched in. When he went inside, LMAO, the woman attacked him first. The man said, when the cop pushed her to the floor was when he got into the fracas. The woman ran outside screaming and called 911 on her cell-phone. They have that recorded, and the police dispatcher didn't even know there was a cop at their house.

Why should it be ok. The United states flag people is seen as a living entity it represent us all. So why is it ok to misuse the very symbol that some of us had died for.And as far as what the ssg did personally I wouldnt have waste my time calling it in Its just very disheartening to see that. We fight, We die you protest. And for all of you that say it is just a peice of cloth tell that to the families of fellow fallen warriors who's casket was draped with it.Tell them that its nothing to get upset about when people burn r disgrace the flag I mean their loved ones only gave their lives for it.

Good Luck trying to view OUR side of things Soldier, sad but true, Salute!

Hooah, I have nothing against liberals till well they become paper mache' patriots.

The colors also have some meanings in the flag. The color red is symbol of courage , enthusiasm, valor, blood and life. Then the color blue represents the azure sky and symbolizes the respect for God . The white color in the USA flag on the other hand means the purity and peace .

What is that an ROTC uniform?

Do you support freedom, or only when it applies to your beliefs?

Are you aware your profile says you are 26, and have an 11 year old child?

Just a few questions, say a shot across your bow!
Beware of throwing rocks at fanta!

NO it is the BDU before the ACU came into play and yes I had a son at a very young age, but what has that to do with the topic if ur going to attack me then do it, but never put my son in it.Oh and yes i am aware,i put it up there. Every american is entitled to their beliefs but as for disrespecting the flag,yes it should be ilegal but like I said u see nothing wrong with it so y bother. And 1 more thing Fanta I dont throw rocks i use my hands.