Arrested Flag Burner Sues Arresting Officers
from the burn-baby-burn dept
Last summer, we brought to you the story of how Bryton Mellott, a young man in Urbana, IL, was arrested for posting a picture of himself burning the American flag on his social media accounts. The story was strange on a variety of levels. First, the law utilized to arrest him, one of many flag-burning prohibitions that exist in laws at the state level, had been declared unconstitutional decades prior to it having ever been enacted. Burning the flag has been codified as a form of protected free speech, no matter how stomach-turning any individual might find it. It was for that reason that the local State's Attorney's office requested that the police let Mellott go and didn't even attempt to bring any kind of charges against him, because they couldn't. The police report also noted that Mellott had been taken in for disorderly conduct, referencing the backlash his actions caused, which is insane. Blaming a victim of threats for receiving those threats as a reaction to protected speech ought to be beneath the common citizen, nevermind those we actually entrust to enforce the law.But perhaps the strangest part of the story, previously un-noted by us in our original post, the impetus for Mellott's arrest was one officer's apparent desperate search to find something for which to arrest him.
Mellott’s post was widely shared and had received 200 comments by the following morning. But just 12 hours after his post, Urbana police officers arrested him at his job at Wal-Mart after Mellott’s supervisor called and reported threats made by unknown people against Mellott and the store. Officer Jeremy Hale researched the Illinois flag-desecration statute, found it was still on the books, and decided of his own accord to enforce it.
Policing in this country isn't traditionally done in this way. Complaints to a local law enforcement office aren't generally then used to scour the books for some potentially applicable law. For this reason, Mallott is suing the three arresting officers for violating his civil rights.
Mellott filed a civil-rights lawsuit late Wednesday in Urbana federal court, claiming the three arresting officers knew or should have known that flag burning has been a protected means of political protest for almost 30 years. He says they violated his civil rights by arresting him. Mellott seeks compensatory damages and a court order that the Illinois flag-desecration statute is unconstitutional. He is represented by Rebecca Glenberg with the Roger Baldwin Foundation of the American Civil Liberties Union.
“Open dissent is the highest form of American patriotism,” Mellott said in a statement. “And it was a frightening display of irony that on the Fourth of July, I should be taken from my workplace to sit in a county jail for exercising this liberty.”
It's difficult to see how this lawsuit isn't a winner. The Illinois state law is, on its face, flatly unconstitutional. That it was enacted decades after this question was decided says everything about the Illinois legislature and the rise of nationalism nationally and nothing about whether or not it might be remotely legal or enforceable. For Mellott to have been arrested and held for hours in a zealous attempt to punish protected speech, and on Independence Day no less, is about as blatant example of an infringement on the First Amendment of which I can think.
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Filed Under: bryton mellott, civil liberties, civil rights, flag burning, free expression, illinois
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Or something. It's been a while, and my troop never handled that anyway, at least not while I was in.
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I wish I could find a clip of Scott Thompson in a Kids in the Hall skit, blowing his nose in the Canadian flag while mocking Americans for their deification of their flag. So funny, so delightfully mean-spirited.
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even the writer feels compelled to virtue-signal their uber-patriotism by the phrase '...even if you find it stomach-churning...' ? ? ?
seriously, EVEN IF you are some sort of uber-patrioter-than-thou sort that would find the burning of a colored piece of cloth to be 'stomach-churning', that you find it stomach-churning is stomach-churning...
it is a symbolic piece of cloth, if you get so warped out of shape over someone burning it for whatever reason, then you are an unbalanced individual and a right proper propaganda victim reflexively spouting uber-patriotic bullshit...
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"The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning."
When my son's were Scouts, our troop held flag retirement ceremonies about once a year. A couple boys would cut a flag while another would explain the symbolism of the different parts. After the cut flag was added to the fire, we would bring up veterans to be recognized and each would put another flag on the fire. If we didn't have enough flags, some would be cut up so that we would have enough pieces for all of our veterans. After the fire was out, we would remove the grommets and bury the ashes.
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Re: Flag disposal
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It's extra funny when you think about it.
Burning a flag can be seen as expressing the freedom to do so, to show that the freedoms available in the country reach even to the point of burning a symbol of the country, to thumb your nose at those in charge, a freedom that is not available in the more repressive countries making it all the more important and valuable.
The people objecting to the activity and trying to ban it are actually the ones attacking the freedoms available in the country and making it seem so pathetic that it can't stand up to someone making such a simple statement, meaning they are doing the exact opposite of what they think they are.
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Richard Nixon: Is that so? Well, I happen to know a place where the Constitution doesn't mean squat!
[Scene changes to the U.S. Supreme Court]
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What That One Guy said is logically true, a sound argument, and will be agreeable to something less than half the population.
What you have said is blatantly false on the face of it, and you are a seditionist for merely concocting that deliberately obtuse smarty-pants word salad - or so just under half the country will think. This will be true for them.
Another large portion doesn't give a fuck. That is true for them, although they're not sure and don't really care.
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"Anonymous Coward, 23 Jan 2017 @ 5:44pm
maybe its just me but “Open dissent is the highest form of American patriotism,” rings extremely hollow."
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Wrong on both counts. I suggest you do a bit of research before making blanket statements like that.
Only around half of American kids say the pledge in class. None of them are required or "forced" to do so. Some say it, some don't, and some make up their own words to it. It may be frowned on to not do so, but no one is forced to say the pledge of allegiance in public school.
I love the way the news spins it. Schools "require" students to say the pledge of allegiance, but they can "opt out" if they want. If something is required, yet can be opted out of, it's really optional at that point and not required right?
https://www.law.cornell.edu/supremecourt/text/319/624
https://www.quora.com/Do-all-American-children- recite-the-Pledge-of-Allegiance-daily-at-school
http://www.sfchronicle.com/education/article/Many-sch ools-skip-Pledge-of-Allegiance-4379740.php
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I was simply pointing out he is/was factually incorrect. Around half of American children recite the Pledge of Allegiance in public school, of those, none of them are forced to do so.
I don't necessarily disagree with the opinion portion of his statement. I was simply pointing out his facts were incorrect, and that he should do a bit of research before stating things as fact that can be easily Googled.
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It depends on how you define the words. If it's "optional", but you have to specifically opt out and will face peer pressure to not do that, then it might still be considered defacto mandatory even if it's technically optional. Doubly so if the kids aren't being informed that they do have such a choice until such time as someone directly challenges it. I have no doubt many are just playing along or that less nationalistic areas don't bother at all, but plenty still do.
Regardless, it seems to me quite obvious that people who are trained from a young age to pledge allegiance to the flag (not the country, the constitution or the people - the flag) are the ones most likely to be overly offended when someone burns one.
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I was simply pointing out that according to SCOTUS, they cannot be "forced" to say the Pledge in public schools. As a responsible parent, I would educate my child so that they understand that they can recite the pledge if they feel compelled to do so, or opt out should they so desire. IMO I'm not so sure it should be up to the teachers to advise the students that they can opt out of the Pledge should they so desire, although some are doing that very thing.
Take the state of Florida for example; It is required by law that the schools advise, in the student hand books given to each student, that the students can opt out of saying the pledge. They even go so far as to offer oral or "other means" should the students so require of informing them.
Short of just outright banning the Pledge in schools, which the parents could lobby the the politicians for if they wanted, and IMO, they've done quite enough in informing the students of their rights and options.
http://www.cnsnews.com/news/article/eric-scheiner/fla-student-handbooks-offer-pledge-allegiance-opt- out
"“1. written notices will be placed in your district’s student handbook(s) that inform students of their right not to participate—by saying or standing—in the pledge, and in cases where students cannot read or need special accommodation, oral or other means of communication be used to tell students of their constitutional rights not to participate;"
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I understand that. I was just saying, there's more meanings of the word "forced" and peer pressure is a hell of a thing for kids, especially in communities who don't take kindly to people questioning certain things. Which in my experience are the kinds of communities who will tend to overreact to things like burning a flag.
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That claim is a bit silly when the next phrase is "and to the republic for which it stands". They are quite clearly pledging allegiance to the country, and not just the flag. Putting the Constitution in there would be a nice touch though.
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"before you express your opinion on anything."
I wasn't arguing with his opinion, I happen to agree with it in this case.
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I never got the impression the flag was anything more than a symbol representing the USA.
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The lawsuit could fail on tgat point alone.
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Having a law declared unconstitutional doesn't affirmatively remove it from "the books"; the law still exists in the code but just has no effect. The legislative branch would need to explicitly remove the law.
The legality of flag burning has been long established. The police should be expected to know about it.
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They should have called the DA and asked a real lawyer "hey can we go arrest this kid who burnt a flag?"
The root problem here was police abusing their power because their emotions said it was ok.
Same reason they beat the living crap out of people who pissed them off.
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They didn't want to do that because the DA would have told them "no".
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They already did. And it was very clear.
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That strikes me as an 'I was just following orders' excuse.
If the police 'knew or should have known' that the law wasn't constitutional then enforcing it wasn't constitutional or legal, and given the activity had been ruled to be constitutional for 30 years according to the defense it's not like it was a recent ruling that they might have missed, meaning they were 'enforcing' a law that they most certainly should have known that wasn't legal.
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So the state has had an unconstitutional law on the books for 30 years, and because the police "should" have known that, they shouldn't be enforcing it?
I'm not sure I agree with you on this one. Obvious abuse of power aside on this particular case, in general, I don't think the police should be interpreting the law, just enforcing it. We've got courts to do the "interpreting".
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So the state has had an unconstitutional law on the books for 30 years, and because the police "should" have known that, they shouldn't be enforcing it?
Well first, the legislature sure should have known it. Personally, I'd sue the fuck out of those useless pieces of shit as well.
However there's a little tidbit missing from the article:
Police say the threats against Mellott created a dangerous situation and he refused to take them down, which led to his arrest. Champaign County State's Attorney Julia Rietz says no charges were filed.
"The police officers looked at the law they had in front on them on the books in Illinois and made the decision to place him under arrest. From my understanding, really out of concerns for his safety and the safety of others."
Source: http://www.illinoishomepage.net/news/local-news/man-arrested-for-suspected-flag-burning/498346494
So while the police might be stupid enough to enforce the law, arresting him for "his own safety" over free speech might mean they can't just invoke the Nazi defense of following orders.
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Unjust laws should not be enforced and police will be judged by the reasonableness of juries if they do something wrong (if a prosecutor ever lets the charges go to trial). They don't get Nuremberg defenses for unjust actions (unless the prosecutor is a dick, which sadly happens too often).
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Virginia's AG in recent years tried to enforce sodomy bans, insisting the SCOTUS ruling that struck down them all only applied to Texas where the lawsuit was brought them.
And there's at least a half dozen states where either their laws or constitutions technically ban atheists from holding public office, even though anyone who's tried to enforce such religious tests has been smacked down in the courts.
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Case law was very clear on this issue.
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If you feel a law is unconstitutional, you challenge it. If you feel a law is not unconstitutional, but is still unfair, you petition law makers to change it. You don't go around suing the enforcers of the law hoping to get a big fat payday.
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Read the story again, this part already happened.
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So any officer can sit outside an abortion clinic and arrest the doctors every time they perform an abortion, then wait for the DA to drop the charges and do it again the next day? I think not.
It's not just a matter of "feeling" the law is unconstitutional. The Supreme Court has made a ruling. OK, that decision wasn't on this exact law (because it didn't exist yet), but it's fairly clear that it is unconstitutional to prohibit flag burning.
I'm also less sympathetic because this wasn't in the heat of the moment. It wasn't "oh, someone is burning a flag in front of me right now and I have to decide whether to arrest them right now". If the officer has the time to calmly research that the law exists, he has the time to look into its constitutionality.
It would be like an engineer reusing the plans for the Tecumseh Narrows bridge and then wondering why everyone was so upset with the result. It's a known bad. As far as your attorney example goes... well, there's a reason why they declined to prosecute, and that's because attorneys generally aren't allowed to argue contrary to established Supreme Court precedent, unless they have a good reason. (I think the NLRB just got sanctions issued against them from an appeals court for bringing cases where precedent had already been established against them.)
Perhaps Illinois should published an annotated version of the law, which includes things like relevant court rulings, similar to what Wisconsin does. Perhaps that would prevent this sort of thing from happening.
By filing this lawsuit, he's doing just that. I guess the arrest actually makes that easier for him, since now he undoubtedly has standing.
Also, if you're an officer and you feel someone has broken the law at some point in the past but there's no particular urgency, get an arrest warrant. Otherwise, expect to get sued if it turns out you relied on a known bad law.
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It's way more logical to sue the state that left an unconstitutional law on the books. That is the point of negligence that should be actionable.
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If someone is going to be put in a position of enforcing the laws I don't think it's asking much for them to be able to understand those laws and think before bringing them to bear against someone. If there was a law in a particular area stating that it was illegal to be a member of an unpopular religion would you be arguing that the police were within their duties to bring someone in under those circumstances, even when it would be blatantly clear that such a law wasn't constitutional?
And this is not a case of some other random court in the middle of no-where saying that flag burning is acceptable, it's the gorram US Supreme Court saying it in 1989, so it's not like it's a radical idea that only just made it through the courts.
"It's not my job to think about the laws, only enforce whatever's on the books" is just as rubbish as "I was only following orders". Personal responsibility does not go out the window simply because someone or something in the case of a law says so, if anything it increases the more power and authority someone has.
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The officer who did that research had enough time to figure out if the state of Illinois had a law against burning the American flag. With that kind of time on his hands, he could have also checked into whether an arrest under that law would be constitutional. Even a call to the district attorney would have been an effective buffer against making an unlawful arrest. That he failed to do even that should be held against him, and he absolutely should have been held accountable for his actions.
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If the police can't be expected to know the law, what are they doing arresting other people for not knowing the law?
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Despite this logic, SCOTUS says exactly that:
https://en.wikipedia.org/wiki/Heien_v._North_Carolina
Long story short: Heien was subjected to a traffic stop due to a broken tail light (and subsequently arrested after drugs were found). The relevant NC law only required cars to have one functioning tail light, so Heien's car was actually fine. The cop who stopped Heien thought (incorrectly) that two working tail lights were required.
So Heien was stopped due to something the officer thought was illegal but wasn't. And while ignorance of the law is no excuse in terms of violating it, the courts do not hold police to that- a reasonable standard is used instead. So if an officer's understanding of the law is wrong but reasonable, that's ok.
Getting back to flag burning, the problem is that it's not reasonable to believe flag burning is illegal given the length and publicity of the precedent.
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Fuck damn, Whatever. Log back in! You made an account, for fuck's sake!
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Police Officers.
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This is exactly fucking right.
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Like I said, I'd have some sympathy if it was a snap decision. It wasn't. He had time to research the law or ask the DA's office or try to get an arrest warrant. Instead he decided to wrongly arrest someone. That's not something minor.
Hah. Just try and get money from the state directly. The only way you can sue them is if they let themselves be sued.
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Get money from the state
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Re: Get money from the state
Prediction: there will be a payout, and the case will quietly go away.
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Damn straight I do, they are given authority (and a gun) to enforce the law, they should know it. otherwise they are just someone with a gun enforcing their will, plain and simple!
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'the law is the law' is the stupid bleating of a cowed sheeple...
The Law is (SUPPOSED) to be used FOR US, not AGAINST US...
when the law is an ass, kick ass...
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And case law says very clearly that flag burning is protected speech.
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Questioning authority and pushing back when you feel it's gone to far has it's roots all the way back to the revolutionary war and start of the country itself, so I'd say the ides of open dissent being in line with 'american patriotism' is pretty spot on.
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Constitution free Zones only exist in the minds of lawyers.
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Ah yes, silly me I forgot the 'Murican mindset, where 'rights' are graciously granted or withheld at the whim of those in charge, and those same people and institutions are always right, and never to be challenged or objected to.
'A good citizen is a compliant citizen' after all.
(To be clear the sarcasm isn't aimed at you, but the stupid idea that some seem to have that those in charge can do no wrong.)
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This article, the first article and the washington post link didn't go in to those details, and while the first article had a screen grab from facebook, it didn't have anything below that.
So my argument was really "What is he dissenting? He's just burning a flag"
For missing the second link, I do apologise and also I would like to thank those who posted quotes below. They were interesting to read.
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Let men label you as they may, if you alone of all the nation decide one way, and that way be the right way by your convictions of the right, you have done your duty by yourself and by your country, hold up your head for you have nothing to be ashamed of."
— Mark Twain, from "Glances at History (suppressed.) Date, 9th century", found in "The Bible According to Mark Twain"
"It doesn’t matter what the press says. It doesn’t matter what the politicians or the mobs say. It doesn’t matter if the whole country decides that something wrong is something right. Republics are founded on one principle above all else: The requirement that we stand up for what we believe in. no matter the odds or consequences. When the mob and the press and the whole world tell you to move. Your job is to plant yourself like a tree beside the river of truth and tell the whole world: 'No, you move.'"
— Captain America, *Amazing Spider-Man #537*
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Then try Aaron Sorkin's prose for the same sentiment:
A. J. MacInerney: The President doesn't answer to you, Lewis!
Lewis Rothschild: Oh, yes he does A.J. I'm a citizen, this is my President. And in this country it is not only permissible to question our leaders it's our responsibility!
Still hollow?
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Unconstitutional laws
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So, in this case, you could say the officer went above and beyond his duty. Probably deserves a medal.
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Keep in mind
I've seen cases where police phone in "anonymous tips" to each other just so they can arrest someone that otherwise they had no probable cause, while using that same call to obtain a warrant to search their residence.
The only way I see this sort of abuse being curbed is to stop allowing police unions to mandate absolute immunity for officers. It is true that there is a downside to that: A cop that is pretty sure something is hinky and it turns out it's not will be held to account as well.
The dividing edge of that razor question is whether or not it's worth letting those questionable situations be decided in favor of law and order, or in favor of civil rights. I'm in favor of rights, but I'm quite sure a number would go with "arrest 'em all, let the judge sort it out".
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What happened to feigning ignorance of the law?
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more more
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Why care how expensive the meal is if someone else is paying?
They get sued often enough, what keeps them from caring is that(barring exceptionally rare cases) they are never held personally accountable for their actions, someone else always ends up picking up the check and leaving them completely untouched.
If individual police had to personally pay when they screwed someone over via indifference and/or malice then they might care to refrain from doing so, but as that is anything but the case they have absolutely no reason to care about such trivialities like 'laws' or 'rights' or even 'lives'.
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Strange
"The United States Flag Code (4 USC Sec 8 Para (k) Amended 7 July 1976) states: "The Flag, when it is in such condition that it is no longer a fitting emblem of display, should be destroyed in a dignified way, preferably by burning." "
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It's all about the feels.
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Re: Strange
An American flag is a symbol of America — not just of the country as a landmass, but of the principles and ideals for which we believe it stands. We are taught that such symbols are to be revered; any show of disrespect toward the flag is also a show of disrespect to America and its people. We are also taught that destruction of the flag as a "dignified" method of disposal does not disrespect the flag.
It is when people destroy the flag as a political statement that we believe the flag has been "desecrated". We have been taught to see flag-burning as a sign of disrespect toward the America — and the American identity. In other words, an "attack" on the flag is an attack on America and its people.
What we were never taught, however, is that a flag is literally just a piece of cloth. We only ascribe meaning to the cloth based on how we were taught to treat it. Burn a washrag or a T-shirt, and no one cares; burn a flag, and everyone loses their minds. Why? Because we were taught to see this one piece of cloth as more important than others, to think of disrespecting this one symbol as an attack on who we are as people.
We were also never taught to consider what is done in the name of this symbol. The flag is meant to be a symbol of America's brightest ideals and highest aspirations. Never mind how America was built on the backs of Black slaves and over the bodies of Native Americans, or how America routinely plays "G.I. Joe" around the world with weapons powerful enough to level buildings. Forget about how politicians wrap themselves in the flag to justify horrible treatment of American citizens (which often helps line the pockets of those politicians). And do not think about our system of mass incarceration or police brutality. The flag stands for "freedom", "justice", and "equality", so burning it is an "attack" on those concepts.
We were taught to see "political" flag burning as an act of violence visited upon the United States and its people. Knowing this, are you still surprised at what all the fuss is about?
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what is all the fuss about?
Ignorance. Plain and simple.
Flag burning represents what the country stands for - a place where unpopular speech can flourish. Most people outraged by it forget that fact.
Flag burning offended the officers and they wanted to make an example out of the guy. The only problem is by doing so, they might as well have taken a shit on the ashes, given that they violated the very premise for which it stands.
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I don't think they "forget" it. I don't think they believe it.
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"'Open dissent is the highest form of American patriotism,' Mellott said in a statement."
I used to believe this.
Used to be that We The People were taught to develop a conscience that placed high value on open dissenters. Jefferson himself encouraged official forgiveness of open dissent up to and including deadly violence.
Now, I prefer dissent that sneaks away without getting caught. Not an option in Mellot's case, but a preferred prescription for those cases where it is an option.
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Too much liberty
(to the tune of "I'm just a bill")
I'm an amendment to be.
Yes, an amendment to be.
And I hope that they'll ratify me.
It seems, we've got some flag burners
who have got too much freedom.
And I want to make it legal
for policemen to beat 'em.
'cause there's limits to our liberty
Oh I hope an pray that there are
'cause these liberal freaks go to far
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Bah.
That flag is an emperor without clothes.
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Burning Flags - So Asinine
Anything that actually gets people's attention...well, that's just rude.
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Re: Burning Flags - So Asinine
Similarly not standing during the national anthem is also rude, but a form of protest that gets attention.
It seems that some people want to only allow meaningless forms of protest.
Would they rather that the flag burner or guy sitting during national anthem engage in a violent protest? Maybe arson, car tipping, etc? All they're doing is burning a flag or sitting during the national anthem. Nobody else nor their property is harmed.
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Re: Re: Burning Flags - So Asinine
"Polite" people rarely get noticed enough to make history.
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"Ignorance of the law is no excuse."
Have fun getting out of that one fellas!
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Equal rights for all protects us all no matter how much we disagree with what someone does.
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