Fired up over his rights

Burning a flag isn't illegal, but officers find a reason to arrest him.

By COLLEEN JENKINS, Times Staff Writer
Published September 15, 2007

TAMPA - Tod Redman Stewart says he doesn't have a future or much of a life. He lost his freedom, too, Friday to protect his right to burn an American flag.

Stewart, 32, is not the man you might expect to fight for constitutional rights. He is unemployed, goes in and out of jail. A judge deemed him incompetent after a previous flag burning display.

He chose the sidewalk in front of the federal courthouse as his protest ground but was not the main attraction. Television crews ignored him, having gathered to report on a bond hearing for a man accused of transporting explosives.

With the help of an attorney, the man inside would challenge the government's right to detain him.

The man on the sidewalk did the same, with only a flag and a flame as his armor.

"You can detain me against my will while you figure this out?" Stewart asked.

Three officers and a couple of federal marshals surrounded him. Stewart was ranting about a government conspiracy against him. He had done this before, twice in this same spot last fall.

Both times Tampa police arrested him. Now Stewart waved around paperwork that showed prosecutors ended up dropping those cases.

The rub: It is not illegal to desecrate a flag. Hasn't been in 18 years.

After a similar incident in July, Tampa police said they would alert their officers about the lawfulness of flag burning. But here on this sidewalk under the searing sun, Officer Kris Babino was on his cell phone trying to figure out what to do with Stewart.

"I don't hate the United States," Stewart was saying. "I'm not a terrorist."

After a few minutes, Babino found a solution. There was a city ordinance, he told Stewart, that prohibited burning in a city right of way without a permit. The officer warned Stewart that he could be arrested on a misdemeanor charge.

"Have you gone to the city to try to obtain a permit?" Babino asked.

"I don't need a permit," Stewart replied. "Basically, you're telling me if the government says I can speak, I can speak."

Babino enumerated the things you can't burn without a permit - "paper, trash, clothing..."

"What about a cigarette?" Stewart shot back.

Later, Tampa police spokeswoman Andrea Davis would cite City Ordinance 11-55, which deals with actions requiring a permit. That law, however, does not explicitly address the issue of fires on city rights of way.

And Tampa City Attorney David Smith would say he thought there was a city law that regulated "open burning," but he would have to do more research. Fire Captain Bill Wade said it was usually enforced in yard debris or trash burning cases.

But back on the sidewalk Friday afternoon, Stewart scoffed at the officer's explanation.

"This is my only way of speaking," he said.

Babino tried again.

"I want you to be able to exercise your First Amendment rights," he said. "But there are rules that need to be followed."

The discourse continued, Stewart disputing the definition of a right of way; Babino saying he could step or spit on the flag but couldn't burn it in front of the courthouse.

The officer, sensing that he wasn't getting through to Stewart, begged the man not to test his power of arrest. Then Babino returned Stewart's Buccaneers duffle bag filled with flags and waited for what he knew was to come.

Stewart walked to the curb. He pulled out a flag and a lighter.

The wind picked up, making it hard to keep a flame. Stewart kneeled on the concrete. Four officers moved in closer.

As soon as the red and white stripes burned to brown, Babino arrested Stewart on a charge of resisting an officer without violence.

Stewart got into the patrol car, speechless.

Staff writer S.I. Rosenbaum and photographer Melissa Lyttle contributed to this story. Colleen Jenkins can be reached at 813 226-3337 or cjenkins@sptimes.com.

[Last modified September 15, 2007, 01:21:18]