Sheriff Van Duncan and a press association lawyer have given conflicting opinions on the state’s public records law in releasing the results of an investigation into the arrests of a West Asheville couple for flag desecration.
Duncan said yesterday afternoon that the law prevents the Buncombe County Sheriff’s Office from releasing information about the results of an internal investigation into the July 25 arrests of two activists on since-dropped flag-desecration charges – or any disciplinary action taken.
“I can’t release the results of an internal investigation or reveal any disciplinary action taken against the arresting deputy or their supervisor,” Duncan told Xpress. “I might want to, but if I did so, I would be committing a misdemeanor.”
That’s wrong, said Hugh Stevens, counsel for the North Carolina Press Association.
“If any disciplinary action was taken against the deputy—if he was suspended, fired, demoted, etc.—that is a matter of public record,” Stevens said. “Furthermore, the sheriff under law can release any information he deems appropriate to maintain public confidence in his office.”
Stevens added that “some of the details of the investigation, specific interviews, for example, might be considered confidential as part of the deputy’s personnel file, but the results of the investigation—the question of did he act rightly or not—he can tell you anything he wants to about the results. He can also tell you if those involved have been pulled off the force, he can tell what’s happened to them. To say that everything about the investigation is confidential is an extremely narrow take on the law.”
Duncan did note in his earlier statement that the department has taken corrective action “to make sure that an incident like this never happens again.”
On July 25, Deputy Brian Scarborough informed activists Deborah and Mark Kuhn, who’d hung an American flag upside down on their porch and attached several statements to it, that they were violating a rarely enforced 1917 state statute banning desecration of the state or national flags. The couple took the flag down but refused Scarborough’s request to show I.D. After that, they closed the door and locked it, and Scarborough proceeded to break the glass and unlock the door, according to the Kuhns and witnesses.
But both Scarborough and the incident report maintain that Mark Kuhn slammed the door on Scarborough’s hand, shattering the glass and injuring him. The deputy then entered the house, a scuffle ensued, and the Kuhns were arrested, charged with two counts each of assaulting an officer, one count of flag desecration and one count of resisting arrest.
All charges were unconditionally dropped on Aug. 2, and Duncan said that U.S. Supreme Court rulings and a 1971 N.C. District Court ruling both made it clear that the desecration statute, while still on the books, is unconstitutional.
Scarborough had been informed of the Kuhn’s flag by fellow National Guardsman, Staff Sgt. Mark Radford. Previously, on July 18, an Asheville Police Department officer had visited the couple, but decided not to try to enforce the statute.
Duncan revealed that Scarborough’s actions had been authorized by a supervisor — and that the sheriff has met with department supervisors to clarify the office’s policies for calls within the city of Asheville.
“We’ve made it clear that any calls in Asheville that are nonemergency or don’t happen within sight of an officer need to be handled by the APD,” Duncan said.
The Sheriff’s Office has also retained the services of Smith, Rodgers and Strickland, a 24-7 legal service that any supervisor can contact if they need to understand the status of a law.
“That only costs a quarter of the cost of an attorney and it can provide our front-line supervisors, even those at sergeant level, with the legal background of a law, with the case history on it,” Duncan said. “With this, we can make sure we’re acting in full accordance with the law.”
The office does legal updates regularly, but the flag desecration statute, only used three times since its passage, was not among them.
— David Forbes, staff writer
photo by Jonathan Welch