NOTE: Reporter David Forbes will discuss the case at 6 p.m. this afternoon (Friday, Aug. 3) on the WCQS-88.1 radio program “Byline.”
All charges in the case of activists Mark and Deborah Kuhn, arrested on July 25 in an incident involving alleged flag desecration are being dropped, Buncombe County Sheriff Van Duncan announced this afternoon. An internal investigation of the arrests is continuing. (For the complete background, see the article “Flag Fight.”)
“We have conferred with the district attorney and are dropping the charges,” Duncan said. “We’ve reviewed the issue and the Supreme Court rulings in this matter are very clear, as is a 1971 North Carolina case deciding this [the flag desecration] statute unconstitutional. We don’t have a good charge here and it wasn’t proceeded with in the proper manner.”
He added that while the other charges in the case — two counts each of assaulting an officer and resisting arrest — “probably are prosecutable, 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,” Duncan said. “We felt it in the best interest of the county and the people’s time and money to drop the charges.”
The Kuhns, who had hung an American flag upside down with several statements attached to it, were told by Sheriff’s Deputy Brian Scarborough (who had received a complaint from fellow National Guardsman Staff Sgt. Mark Radford) on July 25 that they were violating a rarely enforced 1917 state statute banning desecration of the state or national flags. They took the flag down and then refused Scarborough’s request for their I.D.
After that, the Kuhns and witnesses reported that they closed the door and locked it, and Scarborough proceeded to break the glass and unlock the door.
Scarborough and the Sheriff’s Office report instead claim that Mark Kuhn slammed the door on Scarborough’s hand, shattering the glass and injuring the deputy. Scarborough then entered the house and a scuffle ensued. The Kuhns were arrested.
The Asheville Police Department had received a complaint on July 18 and sent an officer to investigate, but decided not to press any charges.
Duncan said that his office expects to have a finding of fact in its investigation by next week. He said that internally he has taken action and the office will learn from the incident.
“We have taken corrective action in this case and we’re going to ensure that this situation doesn’t repeat itself,” Duncan 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.”
The flag, reported early by the Kuhns as taken by the deputies, was located in an evidence bag and, Duncan said, has since been returned to the couple.
— David Forbes, staff writer
photo by Jonathan Welch