Monday, June 2, 2014

Eighth Circuit Says Missouri Flag Desecration Law Unconstitutional, No Qualified Immunity

The Eighth Circuit ruled in Snider v. City of Cape Girardeau that Missouri's statute banning flag desecration was facially unconstitutional.  The court held that the statue was overbroad in violation of the First Amendment, and that there was no possible narrowing construction.  The court also rejected the arresting officer's claim of qualified immunity.

The case arose when a Cape Girardeau police officer arrested an individual for desecrating an American flag, in violation of Missouri law.  The officer made the arrest pursuant to a warrant issued by a local judge and based upon the officer's statement of probable cause to the county prosecuting attorney.

The ruling couldn't have been a surprise to anyone, except possibly the officer and the county prosecutor.  (The ruling included this telling sentence: "Both Officer Peters and [the prosecuting attorney] stated that they were unaware of the United States Supreme Court's decisions in Texas v. Johnson and United States v. Eichman, which struck down statutes criminalizing flag desecration as unconstitutional.")  The court ruled that Missouri's statute was facially unconstitutional under those cases.

The court also ruled that the officer did not enjoy qualified immunity.  The officer argued that he should be entitled to qualified immunity, because the prosecutor and judge signed off on a warrant.  He cited Messerschmidt v. Millender, where the Supreme Court granted qualified immunity to an officer who executed a search warrant unsupported by probable cause because, in part, a neutral magistrate issued the warrant. 

But the Eighth Circuit noted that the Messerschmidt Court said that the neutral magistrate's involvement did "not end the inquiry into objective reasonableness."  The court also noted that the standard in Malley v. Briggs survived Messerschmidt.  The Malley standard says that there's no qualified immunity where "if it obvious that no reasonably competent officer would have concluded that a warrant should issue."  Here, it was obvious.

The ruling upholds a lower court ruling granting attorney's fees to the plaintiff.

https://lawprofessors.typepad.com/conlaw/2014/06/eighth-circuit-says-missouri-flag-desecration-law-unconstitutional-no-qualified-immunity.html

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