Duncan refuses to release flag investigation results

Invoking state public-records law, Buncombe County Sheriff Van Duncan, refused to release the results of an internal investigation into the July 25 arrest of activists Deborah and Mark Kuhn on flag-desecration charges.

But Hugh Stevens, counsel for the North Carolina Press Association, has sharply disagreed with Duncan’s interpretation of the law. The Kuhns, meanwhile, are calling for the citizens of Buncombe County to put pressure on Duncan to release the investigation—and have mentioned possible legal action.

The sheriff noted that the department has taken corrective action “to make sure that an incident like this never happens again,” but he would not say if any personnel were punished.

“I can’t release the results of an internal investigation or reveal any disciplinary action taken against the arresting deputy or their supervisor,” Duncan said on Aug. 9. “I might want to, but if I did so, I would be committing a misdemeanor.”

That’s wrong, Stevens maintains. “If any disciplinary action was taken against the deputy—if he was suspended, fired, demoted, etc.—that is a matter of public record,” said Stevens. “Furthermore, the sheriff under law can release any information he deems appropriate to maintain public confidence in his office.”

At press time, Duncan had not responded to additional requests for comment from Xpress.

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.”

Deborah Kuhn said that “we are definitely concerned about what’s happening here, [and] we implore the people of this county to contact the sheriff and pressure him to release this information. We weren’t willing earlier to sue the Sheriff’s Office, but if in fact this deputy’s just gotten a slap on the hand—the door is still open to legal options.”

Mark Kuhn expressed suspicion about Duncan’s motives.

“He’s covering his own ass,” he said. “When I heard they were doing this as an internal investigation, I knew this was going to happen. His [Duncan’s] concern here is to save this deputy’s job, not to uphold our rights. By dropping the charges publicly, they admitted they were wrong.”

On July 25, Deputy Brian Scarborough informed the Kuhns, a West Asheville couple 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 both U.S. Supreme Court rulings and a 1971 N.C. District Court finding made it clear that the desecration statute, while still on the books, is unconstitutional.

Duncan revealed that a supervisor had authorized Scarborough’s actions. The sheriff also said he’s met with department supervisors to clarify the office’s policies on calls within the city of Asheville. (A city police officer had previously visited the couple but had decided not to take any action.) “I’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,” said the sheriff. “With this, we can make sure we’re acting in full accordance with the law.”

The Sheriff’s Office regularly issues updates on changes in the law, but the flag-desecration statute, enforced only three times since its passage, had been overlooked.

For the Kuhns, the matter is far from over.

“This is why we didn’t enter a plea bargain or anything like that—so our options would remain open” Deborah Kuhn said. “I do not feel comfortable with this deputy [Scarborough] being out there without [him receiving] some extensive psychological counseling.”

She added that she’d be willing “to join or help any group that wants to organize and press the sheriff on this.”

Mark Kuhn said that Duncan faces a choice.

“There have been years of trouble in the sheriff’s office over issues like this, especially under the previous sheriff [Bobby Medford]. Van Duncan’s picked the wrong course of action to change that. It’s an insult that this deputy may still be out on the street.”