Flag Desecration Law Deemed Unconstitutional

     ST. LOUIS (CN) – A Missouri law that banned flag desecration is unconstitutional, the 8th Circuit ruled.
     Cape Girardeau police arrested Frank Snider after he shredded an American flag and threw it in the street on Oct. 20, 2009. Snider told police that he believed it was the country’s fault he couldn’t find a job and was protesting. Snider was arrested and jailed for eight hours for violating the state law against flag desecration. The charges were eventually dropped.
     On July 6, 2010, the American Civil Liberties Union on behalf of Snider, sued Cape Girardeau, 100 miles south of St. Louis, and the arresting officer seeking damages and to have the law ruled unconstitutional. On March 20, 2012, a federal judge ruled the law unconstitutional.
     In a follow-up trial, Snider was awarded $7,000 in damages and the ACLU was awarded $62,000 in legal fees.
     The arresting officer, Matthew Peters, appealed the federal court’s denial of his motion for summary judgment on the basis of qualified immunity. Missouri, which intervened on behalf of Cape Girardeau, appealed the ruling declaring the law unconstitutional. Snider appealed the federal court’s ruling granting summary judgment for Cape Girardeau regarding Snider’s damages claims.
     On Friday, a three-judge panel of the 8th Circuit affirmed the lower court as to all three challenges.
     “This regulation criminalizes a substantial amount of expressive activity,” Judge Kermit Bye wrote for the court. “It is hard to imagine any scenario in which the elements of the statute would be met and yet the actions would constitute non-expressive conduct. Missouri argues § 578.095 is directed only at non-expressive conduct and offers the unlikely hypothetical of a tired person dragging a flag through the mud, aware his actions would likely offend others, but not intending to communicate anything. Yet, Missouri fails to point to an actual instance of the enforcement or threatened enforcement of § 578.095 with respect to non-expressive conduct. By contrast, the district court found at least three instances in which § 578.095 had been applied to protected speech. The district court also noted that § 578.095 may have had a chilling effect on other expressive conduct. The fact demonstrates a “substantial amount” of expressive conduct is prohibited by § 578.095.”
     The court also rejected Peters’ argument that he should have been granted qualified immunity, because he was acting on an arrest warrant issued by a local magistrate judge.
     “Officer Peters’ actions are not insulated by the arrest warrant,” Bye wrote. This country has a long history of protecting expressive conduct on First Amendment grounds, especially when the American flag is the mode of expression. A reasonably competent officer in Officer Peters’ position would have concluded no arrest warrant should issue for the expressive conduct engaged in by Snider. Although it is unfortunate and fairly inexplicable that the error was not corrected by the county prosecutor or the magistrate judge, no warrant should have been sought in the first place. Thus, the district court correctly concluded Officer Peters was not entitled to qualified immunity.”
     The court also ruled against Snider’s claim that Cape Girardeau failed to properly train its officers.
     “The district court properly rejected Snider’s argument regarding Cape Girardeau’s failure to train Officer Peters,” Bye wrote. As the district court observed, Cape Girardeau was not responsible for training Officer Peters. Instead, state law requires that all officers be trained by the Missouri Department of Public Safety. Further, Officer Peters participated in the required and state-approved 600-hour initial training program at Southeast Missouri State University and received continuing education training from approved providers. Cape Girardeau was not responsible for the training program’s curriculum. Thus, we cannot say the district court erred in holding that Cape Girardeau was not deliberately indifferent to Snider’s constitutional rights.”
     Judges Roger Wollman and Michael Melloy concurred.
     The ACLU applauded the decision.
     “What sets America apart is our proud tradition of tolerating unpopular speech,” said Tony Rothert, legal director of the ACLU of Missouri. in a statement. “Today’s decision removes any question that Missouri’s flag desecration statute is unconstitutional. It is time we remove this unconstitutional statute from the books so Missouri’s law enforcement officials will no longer intimidate those who choose to express themselves by using the flag.”

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