The Ottumwa Courier

Local News

September 8, 2006

Motions denied in flag desecration case

Judge files orders, sets trial date

OTTUMWA — The judge has denied two motions to dismiss filed by an Ottumwan accused of flag desecration.

Monroe County Magistrate Judge Kevin Maughan also set trial for 10 a.m. Friday, Sept. 22, in an order filed Sept. 6 at Wapello County Magistrate Court.

Scott Wayne Roe, 40, of Ottumwa is accused of desecrating the United States flag June 4 when he displayed the flag upside down at his residence and wrote “Corruption of Blood,” a phrase from the U.S. Constitution, on the flag.

In his complaint filed with magistrate court, Ottumwa Police Officer Mark Milligan said Roe “did admit to displaying for exhibition and had present in the front yard of his residence for public viewing, an American flag flown upside down.”

Milligan charged Roe under Section 718A.1 of the 2005 Iowa Criminal Code. The offense is a simple misdemeanor.

Representing Roe is Randall C. Wilson of Des Moines, an attorney with the American Civil Liberties Union of Iowa Foundation.

On July 5, Wilson filed two motions:

• A motion to dismiss based on unconstitutionality of certain sections in both the U.S. Constitution and the Iowa Constitution.

• An alternative motion to dismiss that claimed magistrate court should defer the prosecution — in the interest of judicial economy — by dismissing the charge without prejudice, which would allow the prosecution to refile at a later date.

In denying the motion to dismiss, Maughan said “statutes are cloaked with a presumption of constitutionality.” That means “the challenger bears a heavy burden” in proving the unconstitutionality and in refuting “all reasonable bases” that make the statute constitutional.

The magistrate also noted the Iowa Supreme Court has previously held the Iowa flag desecration statute is “not unconstitutionally vague.”

Maughan cited case law in saying a statute is “overbroad in violation of the 14th Amendment to the U.S. Constitution if it seeks to control or prevent activities ... in a manner that is unnecessarily broad, thereby invading protected freedoms.”

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