A case against an Allegheny Township man accused of desecrating an American flag is headed to Blair County Court.
Joshuaa S. Brubaker, 37, testified during his preliminary hearing Tuesday before Magisterial District Judge Steven Jackson that he hung an American flag upside down, emblazoned with the initials of the American Indian Movement (AIM), on the side of his Cross Keys home on Colonial Drive to illustrate his belief that the country is in distress, due in part to a recent state court ruling that gives police the right to search vehicles without a search warrant, as well as the proposed sale of land at the site of the 1890 massacre Wounded Knee massacre in South Dakota.
"It's something I hold dear to me," the adopted Brubaker, who claims his birth father is part Sioux, said of his support for Native American causes. "It's part of what I am, who I am."
Blair County District Attorney Richard Consiglio argued police were well within their rights to seize the flag May 13 without a search warrant because it was in plain sight and that by spray-painting the flag and hanging it upside down, Brubaker broke two state laws, both misdemeanors.
Brubaker's State College-based attorneys, Andrew Shubin and Sean McGraw, working on behalf of the American Civil Liberties Union, argued the issue of flag desecration was long decided by the U.S. Supreme Court and that Brubaker couldn't be prosecuted for expressing his beliefs by using the flag, no matter how offensive it may be to some people.
Shubin said that while Brubaker's flag falls within the bounds of First Amendment protections on free speech, prosecutors also have a problem because Pennsylvania law explicitly lists "any patriotic or political demonstration or decoration" as an exception to prosecution under the desecration of a flag statute. Berg testified he never took any steps to determine the meaning behind Brubaker's flag, something Shubin pointed to several times as the prosecution contended it wasn't politically motivated.
Consiglio said Brubaker's flag wasn't a political statement, but instead an attempt to harass and annoy people, particularly since it was hung directly across the street from the Allegheny Township Municipal building. Shubin suggested through his questioning that Consiglio's stance actually supported the idea the flag was a political statement to the government and said it wasn't up to police to determine what is and what isn't free speech.
Shubin questioned Berg at length about how the case against Brubaker came about and delved into the debate over what constituted a desecrated flag versus one that was modified to make a political statement. Shubin asked Berg whether he was aware that groups such as the NRA and Tea Party have advocated hanging the American flag upside down to also make political statements about the country being in distress, and even showed a picture of Sarah Palin with an American Flag with the words Tea Party on it.
"The fact that it was upside down didn't matter," Berg told the court. "What mattered was he painted - not even in an orderly way - he spray painted AIM across the flag, desecrating it."
Berg said the flag in the Sarah Palin picture was not the same because it was "respectfully written and respectfully displayed."
While police stated in the affidavit of probable cause filed against Brubaker that the township received two complaints about Brubaker's flag, testimony revealed only one person. A woman veteran who was offended when she drove by flag lodged complaints, once by phone May 12 and again in person May 13 after she saw the flag was still up.
"I seen red again," she said, explaining how she felt when she saw the flag was still up after initially talking to police about it.
Berg said he initially
wasn't going to pursue the matter until the woman stopped in a second time. After researching the issue, he and another officer walked across the street to Brubaker's house, but got no answer when they knocked on the door.
So the officers pulled down the flag, folded it up and took it.
Shubin also prodded Berg as to why police didn't seek a search warrant or even leave Brubaker notice that they took the flag. Berg explained since Brubaker lived across the street, police instead decided to keep a look out for Brubaker and then inform him police they had the flag. Shubin called it "squirrelly" that police then waited for Brubaker to walk into the police station and file a stolen property report when they were the ones who took the flag, to which Consiglio pointed out it was well within the rights of police to do that.
Consiglio told the court that Brubaker's claim the flag was a political statement, and therefore an exception to the flag desecration statute, is a matter a jury will ultimately have to decide. As for the second charge, insults to national or Commonwealth flag, Consiglio said the law was on the side of the prosecution.
Judge Jackson said both sides made good arguments and that it is a tough case before deciding there was enough evidence to send the case on to Blair County Court.
"It's very clear that his message was political," Shubin said after the hearing. "It's core, bedrock, First Amendment protection. It's the kind of thing that we as Americans have come to rely on. It's what makes us unique. It's what makes us the country that we are is that we respect people's right to differ, to express opinions and to express them in a way that may offend other people. We don't need the First Amendment for things that we agree with, we need it for things that make us uncomfortable."
Mirror Staff Writer Greg Bock is at 946-7458.