Man Arrested for Flag Desecration Gets $55K in Civil Rights Lawsuit

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 16, 2016

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American FlagA Pennsylvania man was arrested after he spray painted the letters “AIM” on an American flag and hung upside-down outside his home, has settled his free speech lawsuit against the Allegheny Township for over $55,000.

Joshuaa Brubaker says that he displayed the flag to protest the proposed plans to route the Keystone Pipeline through the site of the Wounded Knee massacre in South Dakota. Brubaker is part Native American and says that “AIM” stands for the American Indian Movement. 

Brubaker Charged with Desecration of Flag

At the time of his arrest, Allegheny Township police Assistant Chief Leo John Berg III stated, “I was offended by it when I first saw it. I had an individual stop here at the station, a female, who was in the military and she was very offended by it.” Berg removed the flag, seized it as evidence, and charged Brubaker with desecration and insults to the American flag.

Brubaker defended his actions by saying that he didn’t intend to cause offense, but that he was showing his support for the American Indian Movement. He stated, “I found that Wounded Knee is up for sale. Not only privately, but commercially. It’s just not right, and simply because I express myself in a way that somebody else doesn’t like or agree with doesn’t mean I should be persecuted for having beliefs.” 

Brubaker was charged with the violation of two Pennsylvania statutes:  Insult to National or Commonwealth Flag, 18 P.S. § 2103, which carries a maximum sentence of 2 years imprisonment and a $5,000 fine, and Desecration of Flag, 18 P.S. § 2102(a)(4), which carries a maximum sentence of 1 year imprisonment and a $2,000 fine. 

On April 28, 2015, Brubaker’s charges were tossed out by a judge, who ruled that the flag was political speech and protected by the First Amendment. The judge opined, “it is evident that Defendant’s conduct was expressive conduct constituting political speech protected by the First Amendment…the prosecution of Defendant for his actions directly contravenes these protections in the First Amendment.  Free Speech is among, if not the greatest, of our Protections.” The Allegheny Township then advised its police department to stop enforcing the state’s flag desecration laws. 

Brubaker Sues Allegheny Township

On February 24, 2016, Brubaker filed a lawsuit against the Allegheny Township in Pennsylvania Western District Court, alleging that the charges violated his free-speech rights. Brubaker was represented by the Pennsylvania chapter of the ACLU. One ACLU staff attorney, Sara Rose, stated, “[t]he U.S. Supreme Court has made it clear that the Constitution protects the right to use the American flag in protest…The government cannot charge you with a crime simply because some people think your speech is disrespectful.” Another attorney representing Brubaker, Andy Shubin, stated, ““Mr. Brubaker was arrested and prosecuted because he said something the government disliked. It was the government that acted illegally by punishing Mr. Brubaker for expressing his ideas.”

The supervisors in Allegheny approved a settlement of the lawsuit, allowing their insurance carrier to pay Brubaker over $55,000.

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