Former Minico teacher charged in flag flap

A county prosecutor is taking on a Supreme Court ruling that for decades has protected flag desecration as a citizen's right to free expression.

Invoking a misdemeanor statute the Legislature passed eight years before a Supreme Court ruling changed federal law in 1989, Minidoka County Prosecutor Nikki Cannon has charged former school teacher Dan Luker with publicly mutilating a U.S. flag at his school on May 5.

Cannon alleges that Luker, then an English as a Second Language teacher, threw the flag on the floor of an administrator's office at Minico High School and stomped on it, which broke the wooden stem and ripped the flag off its fastenings.

Luker said he was responding to an incident earlier that day in which gym instructor Clint Straatman dumped the Mexican flag of a Latino student celebrating Cinco de Mayo in a garbage can. Luker, who has since resigned from his position, admitted his behavior was inappropriate. But he said he was triggered by the school administration's indifferences to generalized mistreatment of Latino students - even after he filed many complaints. The school was also making significant cuts to its ESL program.

"For me, it was less about the flag than it was about preventing the abuse of students and staff," Luker said. "I had made abuse reports previously and the abuse that I reported previously had been allowed to continue."

About 50 Latino students held a silent protest at the school. Fears of possible violence led some parents to keep their children out of school, and one student was arrested for an alleged threat.

After the Cinco de Mayo incident, Minidoka County School District Superintendent Scott Rogers asked the Minidoka County Sheriff's Office to investigate both incidents involving Luker and Straatman.

Straatman has apparently not been charged while Luker was charged May 21. The sheriff released the reports to Rogers late last week.

"We feel like the issue has been appropriately resolved," Rogers said. "It's now taking its course through potential legal avenues. We've been directed to not talk about it by legal counsel."

Minidoka County Sheriff Kevin Halverson and Cannon could not be reached Wednesday.

Rogers declined to provide copies of the reports, saying the sheriff should provide them.

The U.S. Supreme Court ruled in Texas v. Johnson that flag burning was constitutionally sheltered from a Texas law banning defacing the flag.

The Idaho statute includes a specific ban of publicly trampling the U.S. or state flag "with intent" to insult the flag.

"The ESL teacher apparently was defacing the flag to send a political message," said Jim Lopach, professor of political science at University of Montana, who teaches constitutional law but who is not an attorney. "He felt it was not proper for the other teacher to deface the Mexican flag. The ESL teacher was using the flag to send a political message. I think a very good argument could be made."

Keith Roark, the Hailey attorney representing Luker, did not return a phone call.

Luker said Roark has copies of e-mails showing how he complained to the administration about the mistreatment of his Latino students and how Rogers ignored or "insulted" him for making those complaints. Rogers declined comment on the e-mails.

In Idaho, it's difficult to find anyone who accepts defacing an American flag as a legitimate symbol of self-expression. Luker, himself, has said his actions set the worst example for his students. But this may be one area where Idaho's culture, manifested in the Idaho Legislature's law, may be trumped by federal law, said Twin Falls attorney Mark Guerry.

"Where there is a federal question involved in a case, then federal law is going to supersede over state law," Guerry said. "If there is a conviction I would assume it would be overturned."

"It's almost impossible to regulate content of speech whether it is written, verbal or symbolic," Lopach said. "Probably the only kind of content that can be regulated would be obscenity, libel, and then maybe student speech."

Idaho Code 18-3401: Public Mutilation of a flag: Any person who publicly mutilates, defaces, or tramples upon or burns, with intent to insult, the flag, standard, colors or ensign of the United States or of the state of Idaho shall be guilty of a misdemeanor.

If the SCOTUS is adamant that there is a right to desecrate the flag, then a reasonable solution is to lower the penalty for assault against people who attack those who desecrate the flag.

That is, legalize kicking their butts.

That takes it out of the power of the SCOTUS at all.

“Well officer, I observed this dirty, stinking hippie burning an American flag, and took it upon myself to bust his nose to show my patriotism.”

“There is no crime in that, Sir, so have a nice day. If you think you may have injured your fist in the process, be sure to get prompt medical care.”

Actually, what I proposed fits under the heading of the “social sanction”, instead of the law.

Every society in human history has had extra-legal social sanctions against those who violate societies taboos. These taboos are non-criminal crimes, enforceable by each and every citizen. And only since WWII, have any societies tried to prevent their enforcement.

For example, if a man donned a t-shirt that said “I molest children” (though he had never), before walking down a busy public sidewalk, he would not get far before being “interfered with”. This could include as much as spontaneous assault from a stranger.

For the vast majority of United States history, burning a flag in a disrespectful way could merit a physical assault, with little or no penalty to the attacker. This is because flag desecration was part of the American social sanction.

Legally, interestingly enough, there is a defense if a person is arrested in such a case. They can make a reasonable argument that the person they attacked “incited” that response.

Before WWII, equality before the law was often in the domain of “gentlemanly” people only. If people did not behave in a gentlemanly manner, police and judges saw no reason to extend gentlemanly treatment to them.

Especially in the 1960s, this was changed, treating rude people better and treating polite people worse, in the name of equality. However, this *only* applies to the law, not the social sanction.

The social sanction, in any nation, is harsh and unyielding. Its punishments can be severe, up to and including death. And since it is decided by the people as a whole, it is remarkably democratic.

Therefore, if some hate-filled agitator jumps out of the crowd with an American flag he means to set on fire, there is and should be no typical limit, outside of substantial mayhem or manslaughter, on those who would enforce the sanction of society on them.

And this is not a unique idea. The State of Missouri has considered relaxing the law against assault in that case.

The State of Nevada has a $20 fine for assault in such cases.

Pennsylvania, $1.

I’m sure there are others.

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