Arrest out: Abusing flag is not a crime

State laws against flag desecration were invalidated 18 years ago.

By COLLEEN JENKINS
Published July 13, 2007

ADVERTISEMENT Donnie James White, 45, of Tampa, was arrested and charged with one count of public mutilation of the flag, a misdemeanor.

TAMPA -- Donnie James White spent three days in jail for desecrating an American flag. Then, Thursday, he became a free man after prosecutors declared the charge unconstitutional.

Tampa police said they were just following Florida law.

Though it has been 18 years since the U.S. Supreme Court invalidated state laws that made flag desecration a crime, Florida never took its statute off the books.

Several bay area law enforcement agencies and prosecutors said Thursday that they could not recall similar arrests in their jurisdictions. The St. Petersburg Times found a flag mutilation case in Pinellas County in 2002. The defendant, who pleaded guilty to that charge and others, was put on probation.

Thinking the "public mutilation of a flag" statute remained viable, Tampa police officers in the past year accused two men in three separate instances of the first-degree misdemeanor.

The charge carried a punishment of up to one year in jail and a maximum $1,000 fine. But the Hillsborough State Attorney's Office dropped all three cases, including White's on Thursday.

"The United States Supreme Court has made it clear that this type of statute is unconstitutional," spokeswoman Pam Bondi said. "The defendant's conduct is protected under the First Amendment."

When White, 45, appeared in court Tuesday after a night in jail, Assistant State Attorney Linda Grable made a case for the charge to stick.

"He rubbed a flag across his body," Grable said. "He stomped on it. He dragged it down the street."

"Sounds like probable cause to me," said Circuit Judge Christopher Sabella, a family law judge who was filling in on the criminal side.

The judge set bail at $500. White, whose previous arrests include criminal mischief and disorderly conduct, didn't post it before prosecutors got him released at 11:25 a.m. Thursday.

Nova Southeastern University constitutional law professor Bruce Rogow said there are several state laws made unenforceable by court decisions.

"The Legislature is good at adding laws," he said, "but never very good at purging the ones that have been declared unconstitutional."

White's arrest falls under the same statute that encompasses flag burning, a hot-button topic that wound its way to the Supreme Court in 1989.

In that case, Texas argued to uphold the conviction of demonstrator Gregory L. Johnson, who set an American flag afire in protest of the 1984 Republican National Convention in Dallas.

In a 5-to-4 decision that went against the court's typical ideological divide, justices declared the flag desecration statutes in Texas and 47 others states unconstitutional. An opinion one year later held the federal Flag Protection Act of 1989 unconstitutional on the same grounds.

"Someone can burn a bedsheet on a street corner and get charged with arson," said Marty Justice, executive director of the Citizens Flag Alliance, which has fought since 1994 to reverse those decisions.

"But if you do that with a flag and say this government stinks, you're going to get off," he said.

Hillsborough prosecutors also dropped such cases against Tod Redman Stewart, arrested twice by Tampa police last fall after he burned American flags in front of the federal courthouse. Court records show he was protesting what he claimed was a government conspiracy against him.

Tampa police spokeswoman Laura McElroy said the agency will seek an administrative expungement of the flag mutilation charge from White's record and will alert officers that the Supreme Court voided the law.

White could not be located Thursday afternoon at Bonni's Door & Screen, the West Tampa business listed on jail records as his address.

He just gets his mail there, said owner Carlos Diaz, who described White as a transient.

But next time White shows up, he's in for a lecture.

"I'm getting on him for doing that," said Diaz, who often hangs an American flag outside his business. "I don't like that."

Times researcher John Martin contributed to this report. Colleen Jenkins can be reached at cjenkins@sptimes.com or (813) 226-3337.

[Last modified July 13, 2007, 00:07:44]