Police 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).
Police 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.