Duncan claims flag investigation results confidential, counsel disagrees

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


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8 thoughts on “Duncan claims flag investigation results confidential, counsel disagrees

  1. chiefmanteo

    There should be accountability for all our public servants, especially those that require public trust for their success (e.g. county sheriffs, presidents. etc.) Sheriff Duncan should not hide behind the statement that “I would be committing a misdemeanor” if he told the public what disciplinary action is taken. IF the sheriff is charged for a misdemeanor and IF he has to pay a fine, I will pay it for him. This was not a sheriffs department employee making a minor violation of law, this was a violation of the constitution. That is very serious. The sheriff needs to accept the public responsibility for the departments actions and act positively to restore public trust in local law enforcement.

  2. mountainman

    What the Sheriff is saying is… I don’t want to fool with these National Guard/Deputy thugs, because of the potential political fallout. The only way this is going to be settled once and for all is for some litigation by the press or the Kuhn’s, because somebody’s got to be held accountable, and the public’s confidence restored. This is not Iraq where anything goes, this is our hometown. Where does Staff Sgt. Radford get off pulling rank on his National Guard subordinate Deputy Scarborough, to attempt to intimidate and trample on the 1st Amendment rights of the Kuhn’s. Where does the overzealous “Law Enforcement Professional” get off with assualting citizens expressing themselves in a harmless act of protest. I’ll tell you where… they just get off, off the hook, because of a cowardly Sheriff.
    Heaven help us all when the next staged terror event happens and Marshall Law is declared, and these guys are actually “in charge”, what then?

  3. This is serious. Is the Sheriff afraid of elements within his department?
    I understand low-level employees being afraid of thugs like that, but not an elected Sheriff.
    I hope this is not the last we have heard of this, and I suspect it is not.
    Monday will bring a new tale.

  4. dankster

    Renegade law enforcement officers need to be fired.this situation is big. Sherrif van Duncan is just hoping this goes away – the public has the ultimate right too know what actions are going to be taken against this officer ( They are our civil servents hired by us the people ) – Sherrif Duncans actions leave me with no positive confidence of how the local police departments are being controlled – Cops are crooks.

  5. Dionysis

    Someone I work with has known Sheriff Duncan for many years, and commented to me right after he was elected that Duncan was “an honest person” who treat the job properly. Perhaps he is an honest person, but, as others suggest, is intimidated by the thugs with badges still in his employ. Perhaps, however, he is being honest and doesn’t know the law very well. In either case, it is hardly an auspicious beginning.
    Sheriff Duncan, if you read these posts, you should understand that you are expected to do much better than this. And this will not simply be forgotten, if that’s the hope.
    Clean out the John Wayne tough-guy wannabes who use their authority to trample people’s rights and/or try and intimidate those publicly expressing different opinions. You want public support? Demonstrate you will not tolerate this kind of heavy-handed goon squad behavior. Let the public know what, if any, action you have taken.

  6. DD

    The Sheriffs postion was predictable. The conclusion doesn’t have to be. Press on until the whole story is told.

  7. DD

    The Sheriff’s position was predictable. The conclusion of this matter doesn’t have to be. Press on until the whole story is told.

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