A Stitch in Haste

I made the case back in July that state flag-desecration bans are so patently unconstitutional as to possibly give rise to civil rights lawsuits should they actually be prosecuted.

It seems like Utah sorta kinda got the message:

A 10th U.S. Circuit Court of Appeals panel will hear arguments Wednesday on the constitutionality of a Utah law that bans desecration of U.S. and state flags.
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Attorney Brian Barnard said his client burned an image of a "smiley face" on a U.S. flag as an expression of frustration with the judicial system. He then displayed his work in front of his garage in October 2002.
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Barnard claims Utah's law is unconstitutional under a 1989 U.S. Supreme Court ruling, that declared a similar statute in Texas unconstitutional.
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County prosecutors dropped Winsness' case but reserved the right to refile charges at any time. Barnard said that puts his client in constant fear of being prosecuted in the future.
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But according to the state's response to the lawsuit, the two men lack legal standing because the charge against Winsness was dropped and Larsen was never prosecuted.

Well isn't that cute — drop the charges, but warn that he may be prosecuted in the future, and then on top of that argue that, since he isn't being prosecuted, he has no standing the challenge the statute.

Very slick.

And by engaging in this on-again, off-again maneuvering, the state law of course stays on the books, to be used if not to prosecute, then at least to intimidate future flag burners.

Very slick indeed.

This is not my area of expertise, but I think the prosecutor is wrong regarding standing. See Doe v. Bolton, 410 U.S. 179 (1973) (Those seeking to challenge the constitutionality of a criminal statute "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.")

And, more importantly, the Utah statute is in fact unconstitutional on its face, as are all state laws banning flag desecration — see my previous post.

If this isn't prosecutorial misconduct, then I'm not sure what is.

Hat tip to How Appealing.

UPDATE: Apparently federal circuit court judges know the law better than local hack prosecutors --

Justices [sic] with the U.S. 10th Circuit Court of Appeals expressed concern that a county prosecutor in Utah would choose to prosecute someone under a flag desecration law that has been deemed unconstitutional since 1989 and that Salt Lake County law enforcement appears ill-informed about such rulings.
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[Circuit Court Judge Monroe] McKay said he was troubled that a prosecutor appeared to have no knowledge of "one of the most notorious cases of our time," referring to Texas vs. Johnson, the 1989 Supreme Court ruling that struck down Texas' flag desecration law. ... [Circuit Court Judge Michael] McConnell also expressed concern that the Salt Lake County deputy did not appear to be educated on the fact that the law was not usable.

I still say the litigants should pursue claims for civil rights violations. In any case, hopefully local prosecutors and senior police officials will finally get it through their heads: criminalizing flag desecration is unconstitutional -- deal with it.

Hat tip yet again to How Appealing.