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Source: Pittsburgh Tribune-Review
Date: December 2, 2009
Byline: Bobby Kerlik

Upside-down flag leads to filing of criminal charge in Butler County

State police filed a little-used and controversial criminal charge against a Butler County man following a confrontation at his home over an upside-down American flag.

David M. Rice, 50, of Muddy Creek is charged with committing insults to a national or commonwealth flag, a misdemeanor that experts said exists in a gray area of law and that sparked a federal lawsuit in Eastern Pennsylvania last year.

State police said they went to Rice's home Monday after a passing motorist called to report the flag was inverted.

Trooper Herbert Rieger knocked on the door and Rice answered, acted extremely angry and said, "What the (expletive) do you want?" according to a police affidavit.

The trooper said he was there in regard to his American flag, which was flying upside down. Rice continued to be irate and stepped toward the trooper and yelled profanities, police reported. Rieger pushed him back and arrested him, the affidavit states.

Rice was arraigned and released on his own recognizance. He faces a preliminary hearing Dec. 8.

Approached at his home Tuesday by a reporter, Rice walked onto his porch carrying a knife and said the flag display wasn't intended as a political statement or meant to offend anyone.

"I didn't do it for anything. It was windy," said Rice, who said he wasn't going to fly the flag for a while. "I love everybody."

The flag was gone from the pole in his yard. Three smaller flags, right-side up, were sticking out of the ground at the edge of his driveway. "No trespassing" and "no hunting" signs were posted nearby.

Rice told police he put the flag up about 1 1/2 weeks ago at night and realized it was upside down a few days ago, the affidavit states.

The statute says it's a crime when someone "maliciously takes down, defiles, injures, removes or in any manner damages, insults or destroys any American flag or the flag of the Commonwealth which is displayed anywhere."

"Not too many people do things like that, but it does get charged from time to time," said Trooper Ronald Kesten, a spokesman for the Butler state police barracks.

Northampton County Army veteran Joseph Yamrus sued Washington Township last year after he was cited under the statute for flying his flag upside down in protest of congressional conduct concerning the nation's Middle East policy. The charge was eventually withdrawn and the lawsuit settled out of court, said Sara Rose, an ACLU attorney.

"The statute doesn't say it's a crime to fly it upside down," Rose said. "It's hard to draw the line between expressive and nonexpressive conduct. We've argued that the flag insult statute is unconstitutional."

Flying the flag upside down is a distress signal and police could consider that defiling the flag, said Clark Rogers, acting director of the Hill District-based National Flag Foundation. He said he's heard of the charge being used "two to three times" in the past 10 years.

"It's a gray area, but it could be interpreted that way," Rogers said. "Some people might say the country is in distress for the war or whatever reason, but that's not what the distress means. It's certainly not a good idea."

The gray area is what prompts judges to strike down similar laws, said Duquesne University law school dean Ken Gormley.

"These types of ordinances and laws often come under attack because (they) reach too broadly," Gormley said. "It leads to vague enforcement based on what an officer likes or doesn't like.

"The word 'insults' could be interpreted different ways. Some police officers could say if you leave the flag out overnight or in the rain that's insulting."

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