The July 25 arrest of a West Asheville couple for desecrating the flag has sparked a storm of controversy, including doubts about the constitutionality of the rarely enforced state statute. The Buncombe County Sheriff’s Office is investigating the handling of the matter, and Sheriff Van Duncan has expressed regrets about the incident, telling Mountain Xpress that “we would normally not have handled the situation that way.”
Local activists Mark and Deborah Kuhn say a Buncombe County sheriff’s deputy invaded their home and used excessive force in responding to a complaint that the couple was desecrating an American flag. The flag, which they’d hung upside down on their porch as a protest, had several statements pinned to it, including a photo of President Bush with the words “Out Now” on it and an explanation that the upside-down flag is a traditional distress signal.
The Kuhns, backed up by several neighbors who witnessed the confrontation, assert that a sheriff’s deputy violently invaded their home on Brevard Road. The Sheriff’s Office maintains that the couple assaulted Deputy Brian Scarborough and resisted arrest. Scarborough, who is also a National Guardsman, became a full-time deputy on June 13 after spending seven months in Iraq. Scarborough had been a reserve deputy since 2003.
According to the Sheriff’s Office, Scarborough arrived at the home at 8:45 a.m. in response to a complaint lodged that morning by Staff Sgt. Mark Radford of the National Guard’s 105th Military Police Battalion, which is based in Asheville.
“I’d taken photos on my personal cell phone after I got off duty and out of uniform,” Radford told Xpress. “The [National Guard] Armory is a gathering place for a lot of cops; they’ll come here to do their paperwork. I showed the pictures to him [Scarborough], asked him if it was illegal and left it in his hands.
“I can’t speak for the Guard, of course, but personally, I felt [the display of the flag] was totally uncalled for,” he added. “If they want to do the political thing, that’s fine, but don’t deface the flag.”
A constitutional act
The U.S. Flag Code, a federal law that spells out rules for flying and displaying the flag, regards an upside-down flag as a distress signal and prohibits attaching anything to the flag. No penalties are prescribed for failing to follow the rules, however, and they are routinely violated by such activities as writing on the flag, using it in clothing or advertising, and flying a dirty or tattered flag.
And in separate rulings in 1989 and 1990, the U.S. Supreme Court found that defacing a flag to express an opinion is a constitutionally protected act of free speech. Furthermore, a 1971 ruling by the District Court for Western North Carolina declared the state statute unconstitutional.
“It’s specifically protected under the Constitution,” said attorney Bruce Elmore, who’s representing the Kuhns. “The founders burned King George in effigy, and protecting that sort of protest was clearly their intent. They realized that it’s unpopular speech that needs protection.” Elmore serves as board president for the American Civil Liberties Union of North Carolina.
But Lt. Randy Sorrell says the Sheriff’s Office has to enforce any statute that’s on the books. “It’s not our job to judge whether it’s constitutional.” And even though the couple lives in the city of Asheville, Sorrell explained, “When we receive a complaint that the law is being broken, we have to respond.”
This is only the third time anyone has been charged under the state’s 1917 flag-desecration law, according to Dick Ellis, public information officer for the N.C. Administrative Office of the Courts.
“We have codes for looking up crimes; this one is so rarely used we don’t have a code for it, but it’s still on the books,” Ellis said. “It’s come up twice before, once was on [the UNC-Charlotte] campus in 1970, a student had a flag with a two-fingers peace sign and a slogan on the back of a jacket and campus security stopped him. The other time was a state trooper stopping some guy who had an American flag on the top his car.”
In both cases the charges were dismissed. The two people charged later challenged the constitutionality of the law, leading to the district ruling.
“Enacted during a period of national chauvinistic fervor, it [the flag desecration law] is an uncommonly bad statute,” Circuit Judge James Craven Jr. wrote in the ruling. “Despite our respect, and indeed love, for these symbols of state and nation, we are compelled to hold the statute unconstitutional.”
Exactly what happened on July 25 is in dispute. The Kuhns say they heard a knock on the door and answered it; after being shown the statute, they took down the flag. Scarborough then asked for their identification.
“The flag covered our whole front porch; he comes up with this printout about the law and tells us that we can’t attach things to the flag, that we’re desecrating it,” said Deborah Kuhn. “We tell him we’re not meaning to desecrate it—all we had was a picture of [President] Bush with ‘Out Now’ on it and a note saying this was not a sign of disrespect. We did this because the country is in distress, and we don’t know what to do.”
Then, she said, Scarborough “started talking arrest, so we took the flag down. He kept wanting to see our ID. We refused. We said, ‘Why should we show you our ID—are you arresting us?’ So we walked back into the house and closed the door.” Kuhn emphasized that the deputy had not produced a citation book or attempted to write a citation before asking for ID.
At that point, however, the accounts diverge. According to Deborah Kuhn, Scarborough “tried to force the door, but we got it closed and locked it with the dead bolt. He then kicked it, punched the glass out, unlocked our door and came after us.”
But the arrest report states that “the man [Mark Kuhn] refused to identify himself and slammed the door on the officer’s hand, breaking the glass pane out of the door and cutting the officer’s hand.”
The Kuhns’ account, however, is backed up by Jimmy Stevenson of Ace Hardwood Floors, who was working nearby and says he saw Scarborough break down the door.
“I saw that one cop [Scarborough] pull up, and I saw those people come out on the porch and start talking to him,” said Stevenson. “They took their flag down, asked the officer to leave and closed the door. Then he started kicking the door: He kicked it about five or six good times, then he laid right into it. After he got done kicking it, he broke the window out—I saw him hit the window.”
Deborah Kuhn says that Scarborough then “pursued my husband into the kitchen. They were scuffling, [and] Mark was trying to get away from him. He pulls out his billy club, and I call 911 and say that an officer has broken into our house and is assaulting us.”
Scarborough sustained a cut to his arm when the window broke, and Mark Kuhn had several cuts on his face from the scuffle with Scarborough.
“I was just trying to defend myself and back away from him,” said Kuhn. “They never, ever told us why we were being arrested until we were in jail.”
Elmore maintains that citizens are not required to produce identification at an officer’s request. “There’s no law that says you have to show your ID—that’s why you have people arrested as ‘John Doe’ or ‘Jane Doe’ all the time,” he said.
But Sorrell said there are “many statutes concerning producing ID, such as before taking a person into custody.”
Deborah Kuhn also asserts that no warrant was displayed or permission asked to enter the house. After calling 911, she says, she ran outside and began screaming for help.
“The arrest was illegal,” said Elmore. The Kuhns “had committed no crime, had not been charged with any crime, and the deputy had no right to force entry into their home. They had the right to defend themselves.”
Sorrell disagreed. “An officer can enter a residence to effect an arrest—that’s not the same thing as a search warrant,” he said.
Neighbor Sam York was awakened by the struggle as the Kuhns and Scarborough came out into the yard. “I woke up to Debbie screaming,” he said. “Mark and Debbie were saying, ‘You assaulted us,’ and the officer was demanding their identification. Then another officer threatened them with a taser. He told Debbie to back away or he’d taser her and demanded that Mark get on the ground.”
Sorrell confirmed this part of the account, saying, “When they were outside, one of the other officers produced a taser, and he [Mark Kuhn] surrendered and submitted.”
Deborah Kuhn’s screams also drew the attention of Shawn Brady and several of his roommates, who live next door. “I run outside and ask them what’s going on, and there’s cops chasing Mark around his car,” said Brady. “They threaten to taser him and demand that he get on the ground. He gets on the ground, and we ask them what they’re being charged with. They tell us it’s none of our concern. I tell them they’re our neighbors, and it is our concern.”
Neal Wilson, one of Brady’s roommates, also saw the deputy produce the taser, he says. “He was shouting at [Mark] to get on the ground.”
Brady and roommate Tony Plichta said that after they’d repeatedly inquired about the charge, the deputies replied that “they didn’t know yet” what it would be.
“This is an outrage,” said Brady. “The First, Fourth and Fifth Amendments were clearly broken today.” Plichta expressed similar sentiments, saying, “They actually wanted to know why we cared—these are our neighbors.”
Following the arrest, the Kuhns were taken to the county jail, where they were charged with two counts of assaulting a government official and one count each of resisting arrest and desecrating an American flag. Their son posted their $1,500 bail shortly afterward. And though the Kuhns say the flag was taken as evidence, the Sheriff’s Office said it has no record of it.
Sheriff Van Duncan told Xpress on July 30 that his office’s Internal Affairs division is conducting an investigation of the incident.
“We’re looking into it right now and trying to see how we can proceed to make sure an incident like this doesn’t happen again.”
He added: “I regret that it happened this way—we’re not trying to enforce that statute.”
Duncan said that he’d met with the Kuhns and that “we’re talking to the District Attorney, we’re talking to their attorney and we’re trying to get this resolved.”
Sounding the alarm
This was not the first time the flag had attracted attention. A week before, on July 18, an Asheville police officer had stopped by to inquire about the upside-down flag.
“He was very polite and just said that because it was a sign of distress, he wanted to make sure everything was OK,” Deborah Kuhn explained. “We said we had it out as a show of desperation—our country is in distress, and we just don’t know what to do. We asked if we had violated any ordinance. He said, ‘No, you have every right.’”
Asheville Police Chief Bill Hogan confirmed that the city had received a complaint and sent an officer by.
“We researched it—left it at the officer’s discretion and decided not to take any enforcement action,” Hogan said.
As for the Sheriff’s Office operating in the city, “I wouldn’t say it’s a usual occurrence—we try to coordinate our efforts so as not to duplicate service,” Hogan said. “But there have been a number of cases where they have answered complaints inside the city.”
Normally, Duncan noted, if the call is within city limits and not an emergency, the office forwards it to the Asheville police.
After the visit from the APD, Deborah Kuhn said she added the photo of Bush and the explanation of their reasons for the protest.
A couple of days later, Mark Kuhn said that an unidentified man in military fatigues came to their door. He was driving a car with a federal license plate, and “He stood here telling me that I needed to take the flag down or fly it right,” said Kuhn.
Because the couple lives close to the armory, Kuhn said he assumed the man was with the National Guard.
Wilson, Plichta and Brady all confirm Kuhn’s account and say that after the man had stopped by, they also saw him drive by several times in the following days. They also report seeing several other men in fatigues taking pictures of the flag one night.
And as the Kuhns were being arrested and taken off, Wilson said he saw a man in fatigues drive by and shout, “Go to jail, baby!”
Radford, who made the complaint, said he’d first noticed the flag on July 20 but had taken pictures from the road. He said he never came to the house or met the Kuhns in person—and he never drove by the house as they were being arrested.
“I’d never even seen their faces until I saw them on the news—I didn’t go up to them, and I didn’t talk to them,” Radford said. “I just turned over the photos [to Scarborough that morning] and said, ‘It’s in your hands.’”
At press time, National Guard Armory officials had not answered requests for comment on any involvement with the incident.
Elmore said the Kuhns have no plans to sue the Sheriff’s Office. “Right now, the first priority is defense against the criminal charges,” Elmore said. “We’re not concerned with monetary compensation here—we’re concerned with making the Sheriff’s Department follow the law and respect citizens’ rights, whether they agree with what they’re doing or not.”
If convicted, the Kuhns could face up to 420 days in jail.
After his experience, Mark Kuhn said he is convinced that this is not an isolated occurrence. “If Americans don’t wake up to the martial state we’re in, the cops, the police, the sheriffs, the state police will all come to our door and take us away. … It’s time for America to wake up.”