All charges against activists Mark and Deborah Kuhn, arrested July 25 in an incident involving alleged flag desecration, are being dropped, Buncombe County Sheriff Van Duncan announced on Aug. 2.
“We have conferred with the district attorney and are dropping the charges,” said Duncan. “We’ve reviewed the issue, and the Supreme Court rulings in this matter are very clear, as is a 1971 North Carolina case deciding [the flag-desecration] statute unconstitutional. We don’t have a good charge here, and it wasn’t proceeded with in the proper manner.”
The other charges in the case—two counts each of assaulting an officer and resisting arrest—“probably are prosecutable,” he added. But “We don’t feel the original charge was, and we don’t feel it’s prudent to proceed with those.
“Trying to proceed with them would only further this debate,” said Duncan. “We felt it in the best interest of the county and the people’s time and money to drop the charges.”
“I was certainly pleased—there was no deal making, there were no arrangements to make things go away,” Deborah Kuhn said. “The charges were just dropped unconditionally.”
On July 25, Deputy Brian Scarborough informed the Kuhns, 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.
Scarborough, who also serves in the National Guard, was following up on a complaint from Staff Sgt. Mark Radford, a fellow Guardsman. (Radford was also employed by the Sheriff’s Office as a jailer from September 2000 to May 2001, records show.) A week earlier, the Asheville Police Department had also sent an officer to investigate in response to a complaint but decided not to press any charges.
At press time, an internal investigation in the matter was continuing, and Duncan said he expected to announce the findings sometime in the coming days.
“We have taken corrective action in this case, and we’re going to ensure that this situation doesn’t repeat itself,” the Sheriff said. “We should have been aware of the constitutional status of the law, and we should have been aware that the city [police] had already visited the Kuhns.”
Deborah Kuhn said that she and her husband are awaiting the results of the investigation.
“I think that will be telling. If we don’t feel that proper disciplinary action is taken, we’re going to take this to the people of Buncombe and ask if they’re comfortable with having a deputy who feels it’s O.K. to break into people’s houses for a misdemeanor,” she said.
The flag, which the Kuhns had said was taken by the deputies, was found in an evidence bag and has since been returned to the couple, said Duncan.
American Civil Liberties Union State Board President Bruce Elmore, a local attorney who represented the Kuhns, said that he appreciated the actions of both Duncan and District Attorney Ron Moore, but has his concerns.
“We appreciate that they both recognized how clearly unconstitutional the [flag-desecration] statute was,” Elmore said. “But there’s an issue here with how well informed our officials, even our elected ones, are on the rights guaranteed by the First Amendment.”