Illinois Police Drop Charges Against Man For Burning American Flag

1414249_1280x720Police in Urbana, Illinois appeared to throw well-established constitutional law to the curb with an abusive arrest of Bryton, Mellott, 22, who filmed himself burning the American flag. The Wal-Mart employee was charged with flag desecration despite two Supreme Court cases clearly saying that such an act is constitutionally protected. Now, after various experts (including myself) said that the arrest was unconstitutional, the police have dropped the charges. However, there remains the question of any discipline against the officers and supervisors involved in such a facially unconstitutional case.


Mellott invited an arrest with a message on the posting stating “I do not have pride in my country. I am overwhelmingly ashamed, and I will demonstrate my feelings accordingly. #ArrestMe.”

The taunt was well-based, if juvenile. Supreme Court has stated clearly that flag burning is protected under the first amendment in Texas v. Johnson (1989) and U.S. v. Eichman (1990).

6666624765368123222Police say that they responded to demands from citizens for an arrest – hardly a convincing defense to say that we were merely trying to appease the public with an unconstitutional arrest. What is equally bizarre is that he was charged with disorderly conduct as well as being the victim of disorderly conduct. His conduct was deemed as “causing others to be put at risk of harm.” That is facially ridiculous. Just as the act is constitutionally protected, you cannot charge some for the response of others to a constitutionally protected act. It is like arresting a journalist for the response of a reader to an article.

The city should face a false arrest claim. However, the city should also demand discipline for those officers who arrested an individual for the exercise of his first amendment rights. It is a dangerous thing indeed when a police department ignores clearly established constitutional law. The dropping of the charges is of little consequence since the charges would have been dismissed. The greater question is how such charges could be brought in the first place.

16 thoughts on “Illinois Police Drop Charges Against Man For Burning American Flag

  1. Would you discipline the officers if the command for arrest came from the prosecutor’s office? Clearly the 2nd charge is made up from whole cloth. Sounds like something a third-year law student would devise for an exam answer when they didn’t know the real answer.

  2. The city is completely liable for violating this man’s free speech rights in this manner and I don’t expect the officers involved to be granted qualified immunity if sued individually.

    For me this article brought to mind another issue relating to qualified immunity.

    In decades past, much time passed between when appellate and supreme courts issued rulings and when law enforcement officers applied these changes into their daily work routine. In fact, in my state in the late 80’s it usually took a couple months, unless it was a very drastic change, for the decisions to be reviewed by the state attorney general’s office and then mailed to each law enforcement agency where officers would then read the opinion of the AG (a monthly publication known as the Law Enforcement Digest (LED)) and incorporate the case law.

    During that era, officers could claim and receive qualified immunity for lets say rather minor actions that had only just recently fallen out of constitutional permissibility. For example, when previously officers were allowed to search a locked glove box in a car incident to arrest but two weeks later the state supreme court ruled the search of a locked glove box incident to arrest violated the 4th amendment, the search would be thrown out and evidence gathered excluded but the officers could easily be granted qualified immunity since the information concerning the case law change had not been received by them and they were acting in good faith under the purview of the now deprecated practice.

    Now decades later, opinions of the appellate and supreme courts are published each week on Thursdays and are emailed out to whomever subscribes to the courts’ list servers.

    Due to the rapid publishing and distribution manifest today, I foresee the time frame permitted for qualified immunity to shrink dramatically and there will be little tolerance by the courts in granting immunities since the expectation for agencies and individual employees will be to immediately update themselves to changing case law.

    This surely will necessitate individual officers and employees of the CJ system to have a more intimate understanding of interpreting the courts’ decisions and precedents, rather than instead of relying on or deferring to prosecutors and attorneys general to interpret the case for them.

  3. Prof. Turley writes, ” His conduct was deemed as ‘causing others to be put at risk of harm.’ That is facially ridiculous. Just as the act is constitutionally protected, you cannot charge some for the response of others to a constitutionally protected act. It is like arresting a journalist for the response of a reader to an article. . . .”

    It’s also like charging or claiming the liability of a gun maker for a disturbed individual’s acts when he gets his hands on one. I can hear former Surgeon General Joycelyn Elders’ anguish: “We need safer flags and safer flag poles!”

  4. It is surprising that this occurred in Urbana Illinois. Urbana is home to the University of Illinois, and is a liberal island surrounded by a sea of conservative rural cornfields.

  5. IIRC, flag-burning was outlawed by Congress and a number of state legislatures before those laws were deemed unconstitutional by the SC. Not all laws that are ruled unconstitutional are removed from the books, though. Would the officers have any defense to being sued if such a law was still on the books in Illinois?

    • Wonderer writes, “IIRC, flag-burning was outlawed by Congress and a number of state legislatures before those laws were deemed unconstitutional by the SC. Not all laws that are ruled unconstitutional are removed from the books, though. Would the officers have any defense to being sued if such a law was still on the books in Illinois?”

      That’s an interesting question, for sure. A cop would almost have to have a law degree to know what state or local statute is illegal at the federal constitutional level, which seems completely unreasonable. Cops have enough to worry about, so that they can go home after each shift.

      This seeming conundrum could be resolved if police would have some sort of appropriate and immediate communication with the DA’s office to get answers when there’s a question about the validity of a state or local statute having been voided wholly or partially by federal law. It’s a thought, anyway.

      As you stated, many state laws do stay on the books anticipating federal law may be overturned which then reinstates the state or local statute. Yet, this is a poor excuse for not having some sort of system to apprise police officers of the validity of such laws. I think police officers should have qualified immunity in such cases, but the jurisdictional entity (the local city or county) shouldn’t.

    • Dan – from time to time I have thought that poor taste should be made a criminal offense. However, since taste is personal, I have never figured out how this would work in the real world.

  6. He wanted attention and he got it. The fact that the Urbana police got suckered into this one suggests that some remedial training is in order.

    You can tell by the smirk he seems to have plastered on his face (Lip curled up in the corner to show his disdain for all of us lower beings) that this was all about him and not about making any kind of coherent political statement. He seems to be a Trumpian Leftist. They are coming out of the woodwork these days. Just let people like this show their asses and be who they are. And when they wind up with no friends, no jobs and no prospects, then let them try to dig themselves out of the hole they’ve been digging for their entire lives. Tools have to learn the hard way, but they shouldn’t go to jail just for expressing their stupidity.

  7. Disciplining the cops is not enough. It ought to be a crime to violate the Constitution when the fact that a government official violated it is an open-and-shut question. The Constitution, after all, is the highest law of the land. A judge who posts the Ten Commandments in his courtroom ought to be criminally prosecuted. Likewise a cop who seizes a cell phone from a person who is photographing or recording him in public. Likewise a teacher or principal who forces a child to recite the Pledge of Allegiance or to stand while it is being recited. Likewise a cop who tasers someone who is walking away or who is in handcuffs or in a wheelchair.

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