Bad Cop Blotter

Pennsylvania Police Charged a Man With Flag Desecration, Which Is Apparently Still a Thing

Don't listen to those cops though: You can do whatever you like to the flag in the name of political speech.

Lucy Steigerwald

Lucy Steigerwald

Photo via Flickr user Rich Anderson

A Blair County, Pennsylvania, resident named Joshua Brubaker got into some trouble last week after he hung an American flag upside down and painted “AIM” on it. Brubaker, who is part American Indian, was trying to make a statement after learning that the site of the infamous 1890 Wounded Knee massacre—and a 1973 conflict between the American Indian Movement and the FBI—was going up for sale. A graffitied flag is the kind of routine artistic protest often made by 19-year-olds who have just heard of Noam Chomsky, but it really pissed off L.J. Berg, an assistant chief with the Allegheny Township police. Berg—who says a woman who was in the military was offended by it as well—took it upon himself to take the icon down and charge Brubaker with desecration and insults to the American flag.

According to Flag Code, an upside-down flag is a distress signal, and some protesters have, like Brubaker, used it as a symbol for metaphorical or political distress. In 2012, a West Virginia McDonald’s flew an upside-down American flag at half-mast either in protest of Obama’s reelection, or, as the franchise owner later said, because a cable broke. Also that year a veteran in Spokane, Washington, had his upside-down flag stolen from his yard about two weeks after he first put it up to protest “a lot of political things.”

Malcontents from across the political spectrum turn flags upside-down, but there are plenty of people who wish all these damn hippies would get locked up or whatever—as headlines like “Desecration or Free Speech?” reflect. In fact, the right to burn or deface the stars and stripes was only officially affirmed 25 years ago, in the Supreme Court case Texas vs. Johnson. That dealt with a communist named Gregory Johnson, who in 1984 burned an American flag outside the Republican National Convention in Texas and was subsequently arrested for vandalizing a respected object. He was sentenced to a year in prison under the 1968 Federal Flag Desecration Law, but in 1989 his conviction was overturned by the Supreme Court, which held that burning the flag was “symbolic” and protected free speech. Part of the court’s reasoning was that since burning a flag is a proper way to “retire” it, the prosecution of Johnson was based on his political motivations, not the actual action of burning, and you can’t arrest people for their beliefs in the US.

Subsequent federal laws to protect the flag have been either overturned or gotten stuck in a legislative quagmire, usually in the House. State restrictions on burning or defacing the flag have been overturned since as unconstitutional, but not without a fight—in Missouri, a judge overturned one such law in 2012 after a man successfully sued after his arrest for burning and tearing a flag in 2009, but that fight has continued in other courts. Freedom of speech aside, many Americans still think flag burning should be illegal—a 2006 Gallup poll found that a majority of respondents favored a Constitutional amendment that would allow legislatures to ban flag burning. (Fortunately, America is not ruled by opinion polls yet.)

But hold on—doesn’t all that mean the cops were clearly in the wrong when they arrested Brubaker? Not necessarily. He’s been charged with a third-degree misdemeanor under a 2010 Pennsylvania law that prohibits various desecrations of the flag that makes exceptions for “patriotic or political demonstration.” The legal director of the Pennsylvania American Civil Liberties Union told the media that Brubaker’s flag absolutely qualifies as political, and thereby protected, speech. The cops can argue that Brubaker’s actions aren’t political and attempt to make the charges stick—they’d just be very, very wrong. As Brubaker said, “If I don’t have a right to fly that flag upside down, which means a sign of distress, which this country is in so much distress right now, then what’s the point of having it?”

On to the rest of this week’s bad cops:

- A May 9 no-knock drug raid by Killeen, Texas, cops that ended with two officers shot, and one killed, did not turn up any drugs after all. All the 5:30 AM raid found was a grinder, a pipe, and a pistol—not a haul worth risking, or losing, a life over.

-In spite of Huron County, Ohio, sheriff’s deputies having had the wrong address for their March drug raid on the home of John Collins, the 26-year-old will still be charged with cocaine possession. A marijuana pipe with cocaine residue was found at Collins’s house—where the police weren’t supposed to be—and now Collins will pay the price for the deputies’ incompetence. Good job, everyone.

-Speaking of raids gone wrong, on Thursday a San Bruno, California, family filed a lawsuit against the local police department, alleging they were mistreated during a 6:30 AM raid last July when the cops were looking for a gang member who didn’t live there. Lisa Yeager says she was thrown against the wall so hard she urinated on herself, then was made to lie on the lawn for 15 minutes clad only in a bra and panties. Her 93-year-old mother was reportedly so scared by the raid, she had to be taken to the hospital with chest pains. The family’s lawyer was quoted as saying, “You can’t do a crummy job of your job all in the name of the war on drugs,” but she’s clearly wrong about that. You definitely can.

-On Sunday, the Miami Herald published a completely horrifying investigation into the June, 2012 death of a 50-year-old mentally ill prison inmate who was killed when Dade Correctional Institution guards allegedly forced him into a scalding hot shower and locked him inside for more than an hour. Somehow worse still, Miami-Dade police and prosecutors have spent the last two years failing to investigate the death of Darren Rainey. The authorities didn’t even complete an autopsy on his body—and, conveniently, the camera that was recording the shower area “malfunctioned” at the time of the incident. Reportedly, the inmate was so badly burned that his skin slipped off his body when he was finally taken out of the shower. Naturally, since Rainey was merely a 50-year-old mentally ill convict, the underlying message from Miami-Dade police is, basically, who gives a shit if he was cooked to death in the shower? If the Herald piece is correct, there is some disgusting stuff happening in that Florida prison.

-A May 16 Rolling Stone article that you should read noted that many juvenile defendants in the US have to face charges without defense counsel. This—particularly in a world in which kids enter the court system for more and more bullshit reasons—is a disturbing violation of juveniles’ most basic rights.

-During Wednesday’s Officer’s Memorial Parade in Washington, DC, two officers—Gary Robertson of the St. Louis County PD, and Douglas Goerke of the Orlando PD—saved the life of a firefighter who was playing in the marching band after he went into cardiac arrest. Robertson and Goerke performed CPR, then used a defibrillator on the man, eventually bringing him back from the brink. These two officers get our Good Cops of the Week for preventing the Officer’s Memorial Parade from turning into a Firefighter's Memorial Parade.

Lucy Steigerwald is a freelance writer and photographer. Read her blog here and follow her on Twitter.

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