By Erin McCauley, Courthouse News Service
February 26, 2016
PITTSBURGH (CN) – Pennsylvania police illegally arrested a Native American for what its police chief called an “unpatriotic” desecration of the flag, which he spray-painted and hung upside-down on his own porch – which happened to be across the street from the police station, the man claims in court.
Joshuaa Brubaker sued Allegheny Township and its Police Chief Leo Berg III, who was the assistant chief when Brubaker was arrested in May 2014, for violating Pennsylvania’s flag desecration laws.
Brubaker spray-painted “A.I.M.” – for the American Indian Movement – on the flag and hung it upside down on his porch “to communicate his distress over a Pennsylvania Supreme Court decision and the United States government’s proposed Keystone Pipeline routing through a sacred Native American site, Wounded Knee, South Dakota,” he says in his Feb. 24 complaint in Federal Court.
The Wounded Knee protest is self-explanatory. The Pennsylvania Supreme Court had ruled that police do not need a warrant to search a vehicle.
Brubaker wants Pennsylvania’s two flag laws – “flag desecration” and “flag insult” – declared unconstitutional, damages for constitutional violations, and punitive damages from Chief Berg.
Insulting the flag in Pennsylvania is punishable by up to two years in prison and a fine, desecrating it by one year and a fine.
Brubaker says he is “part Native American by birth,” but does not identify the tribe, nor was it identified in reports on his arrest, which was widely covered in Native American newspapers, such as Indian Country Today.
Brubaker says he hung the flag “to communicate his distress” and that he used his flag to prompt people to think about their freedoms and to teach his children ‘that when you believe in something strongly, you have to take a stance, no matter whether it’s popular or unpopular.'”
Chief Berg told Indian Country today that he arrested Brubaker because people were offended by his protest. The Allegheny Township police station is in Municipal Hall, across the street from Brubaker’s house.
Brubaker says in his lawsuit that Berg told him he was arresting him “because he felt that the flag display was ‘very offensive,’ ‘disgraceful,’ and ‘unpatriotic.'”
He says Berg also told him he was charging him with misdemeanors because the ‘A.I.M.’ initials were not written in a ‘neat, orderly way’; and the flag wasn’t … displayed … patriotically … or in an honorable … decent way,'” and that Brubaker “had not ‘earned [the] privilege’ to ‘utilize a United States symbol for his personal use’ because of his political views.” (Ellipses in complaint.)
Berg seized the flag and took it.
Brubaker then walked across the street to the police station to report a stolen flag.
Berg then “ordered a subordinate officer to ask Mr. Brubaker to complete a stolen item report as prosecutorial tactic to secure Mr. Brubaker’s admission that it was his flag,” Brubaker says.
When Berg told him he was being charged with desecrating and insulting the flag, Brubaker says, he apologized, and offered to “help Chief Berg understand why he felt that it was legal to use his flag to express his political views.”
A Blair County judge dismissed the charges in April 2015, citing the First Amendment.
Brubaker seeks declaratory judgment that state flag laws are unconstitutional, damages and an injunction.
He is represented by Andrew Shubin, of State College, and Witold Walczak, with the ACLU’s Pittsburgh office.