GOOSE-STEPPING IN ASHVILLE

Asheville Couple Arrested

Under N.C. Law Still on the Books

For “Desecration” of the U.S. Flag

A report by Len Carrier, DW In-House Historian

and Philosopher (and a resident of Asheville), with an

Addendum by DW Environmental and Science Contributor,

Patrick Morton.

Sheriff’s Department uses Fascist Tactics  

   The finer points of law enforcement went unobserved in Asheville, N.C. on July 25, 2007 with the arrest of Mark and Deborah Kuhn for flying a flag in distress; namely, the reading of their rights, a warrant for their arrest, a warrant to enter their dwelling, telling them what they were being arrested for, using unnecessary force, and threatening them with a taser. Perhaps the Buncombe County deputy sheriff who arrested them should have been the one arrested, not the Kuhns.

   What the Kuhns did was to fly the American flag upside down, with a picture of President Bush pinned to it over the words, “out now.” A National Guardsman complained about the Kuhns’ flag to the deputy sheriff, an Iraq veteran, and the deputy cited the Kuhns for flag desecration under an obsolete North Carolina state law.  After the Kuhns protested against showing their IDs to the deputy, there was a scuffle and the Kuhns were arrested and jailed.  They were charged, not only with flag desecration, but also with obstruction and assault on a government employee.

   A couple of days earlier, the Asheville City Police Department had already passed on the way the Kuhns were flying their flag. Asheville city police didn’t have a problem with it.   It was only because the Kuhns lived near a national guard armory that they drew the attention of the guardsman and the sheriff’s deputy. Apparently, the Kuhns’ symbolic protest angered those who think that our troops are fighting for the flag, instead of what it stands for–freedom of speech and the rights contained in the Fourth and Fifth Amendments of the U.S. Constitution, which they are sworn to uphold.

   After being released on $1,500 bond, the Kuhns rightfully claimed that their civil rights had been violated, and they demanded that the sheriff’s deputy be fired.  Less than a week later, the Sheriff asked the District Attorney to drop the charges against the Kuhns.  The flag that the deputy had confiscated was returned to them, and an apparently embarrassed Buncombe County Sheriff now verifies that the Kuhns are “allowed to do what they’re doing.”  It is unknown what disciplinary action was taken by the sheriff against his deputy, but the sheriff announced on August 15 that the deputy will keep his job. Meanwhile, the Kuhns are so disappointed  with law enforcement in Buncombe County that they have given up their protest in disgust.

   It seems obvious that the arresting deputy overstepped his authority. What is not so obvious is why North Carolina still carries on its books a law that prohibits people from knowingly mutilating, defiling, defacing, or trampling on an American flag.  The U.S. Supreme Court in both 1989 and 1990 had already decided that flag “desecration” was protected as a form of expressive conduct under the First Amendment.  The N.C. state law was also challenged and ruled unconstitutional in 1971. The Buncombe County Sheriff also said that it was “pretty apparent to us where the Supreme Court stands on this issue.” If this is so, then North Carolina legislators should wipe that law off the books.  After all, the term “desecration” refers to the diverting of something sacred to something profane.  The American flag was never consecrated, and therefore it cannot be desecrated.

                                                                       Leonard Carrier

Patrick Morton’s Addendum

Dear Dusty, Bob, DW, B.E.A. and friends,

I agree that the officer involved here was too egregious,and thought I would add some cents-worth here.

For most military and ex-military people, Flag Ettiquette runs much deeper than manners and common sense. We protect both it and its idealized symbolism fiercely. Had the incident in question taken place inside the District of Columbia, the full weight of the law would have been in favor of the deputy sheriff making this arrest (except for the deputy’s misconduct). Such federal laws protecting the flag have been adopted in spirit by many states, but culpability under the letter of the law for each state remains gray at best.

The Kuhn’s did break their local laws by refusing to properly identify themselves to said deputy. That act is clearly obstruction by N.C. Statutes and once events escalated to a scuffle, isn’t it obvious that the deputy may well have approached the Kuhn’s, looking for a fight, and found one?

While it may be easy to say in the aftermath that the Kuhn’s should have remained passive throughout the ordeal, it is equally possible that they were not given the choice.

Whether there exists an enforceable N.C. State Statue similar to the D.C. Flag Code or not, and whether the Kuhn’s were guilty or not, certainly they should pursue legal remedies against the offending law enforcement officer and the department because their treatment was unwarranted considering the nature of the supposed defense. In short, it is law enforcements duty to uphold the law and to not presume to act at judge and jury.

Were I a lawyer instead of a teacher, I would seriously consider representing the Kuhn’s myself.

Patrick Morton