The protesters who pulled down a U.S. flag at an Aurora immigration detention facility and attempted to destroy it could face property crime charges, but it’s unlikely they’ll be convicted under Colorado’s flag mutilation law.
In fact, that law is probably unconstitutional, legal experts said.
“It’s almost surely unconstitutional,” said Alan Chen, a University of Denver professor who studies free speech and constitutional law. “If the government tried to bring a charge under that, it would almost certainly be struck down.”
The incident at the July 12 protest outside the private immigration detention center has drawn national attention and ignited heated debates here among activists and politicians, highlighting the nation’s complicated history regarding the use of its most powerful symbol in acts of protest.
A small group broke from the main crowd of more than 2,000 protesters, walked over a chain marking the beginning of private property and climbed a flagpole. They pulled down the U.S. flag, attempted to burn it, then replaced it with a Mexican flag. They also vandalized a black, white and blue version of the American flag that represents supporting law enforcement and hung it upside down on another flagpole.
Aurora police continue to search for the people involved in the flag incident and wrote on Twitter that they are seeking suspects in the case on suspicion of criminal tampering and injury to property.
Colorado’s flag mutilation law forbids anyone from destroying or damaging a U.S. or Colorado flag in public “with intent to cast contempt or ridicule upon the flag” or to “outrage the sensibilities” of people observing the actions. The law states that anyone caught doing so could face a misdemeanor charge that carries a maximum penalty of six months in jail and a $750 fine.
It’s unclear if prosecutors would pursue that charge if the suspects in the ICE protest incident were arrested. Seventeenth Judicial District Attorney Dave Young, whose office would decide which charges to file, said he didn’t know enough about the incident to talk about what charges he would consider.
“No one has presented this case to us,” he said.
Despite the law’s potential to be unconstitutional, seven people have been charged under the flag desecration statute since 2002, including cases in Loveland, Durango and Craig, according to court data obtained by The Denver Post.
Only one of those people — a man in Greeley — was convicted of the crime and was sentenced in 2009 to six months of probation. The other six defendants had the flag mutilation charge dismissed, often as part of a deal in which they pleaded guilty to other counts.
Pursuing suspects on property charges like theft or trespassing wouldn’t be a violation of the First Amendment, said Helen Norton, a constitutional law professor at the University of Colorado Boulder.
“The government can punish folks who steal or vandalize government property or any of our property,” she said. But the U.S. Supreme Court makes clear that people cannot be punished specifically for an act of protest involving a flag.
The issue seems to reemerge every two decades, said Chen, the DU law professor. The courts dealt with a number of flag destruction cases in the 1970s during protests about the Vietnam War. The problem resurfaced again after a protester burned a U.S. flag in 1984 outside the Republican National Convention in Dallas.
“It tends to happen when things are a little virulent with public protest,” Chen said. “It’s not that surprising that it would come up right now.”
The Colorado Supreme Court addressed the issue in 1973 after a man pinned a portion of the U.S. flag to the butt of his jeans and was convicted in Boulder under the state’s flag desecration statute.
The Colorado Supreme Court reversed that conviction and found the act was protected under the First Amendment.
“First Amendment freedoms are the cornerstone of our democracy and the source of the strength and vitality of our society,” Justice Donald Kelley wrote in the court’s decision. “It is the unfettered and public discussion of ideas of every sort that keeps the institutions of government responsive to the people.”
