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Flag charges dropped
Sheriff: Deputy shouldn't have been at scene

Mike McWilliams and Adam Behsudi / CITIZEN-TIMES.COM | Aug 3, 2007

Related: Couple Terrorized, Assaulted and Arrested For Flying an Upside Down U.S. Flag

ASHEVILLE- Buncombe County's sheriff and district attorney have dropped charges against a couple accused of desecrating the American flag, saying they stood little chance in court.

The Sheriff's Office will continue an investigation into the actions of Deputy Brian Scarborough, who issued the charges after a complaint from a fellow National Guardsman, Sheriff Van Duncan said Thursday.

Duncan said he "had rather we responded to that call differently" and that Scarborough "probably shouldn't have been there to begin with."

The sheriff said he asked District Attorney Ron Moore to drop the charges against Mark and Deborah Kuhn, who also said the deputy assaulted them.


The Kuhns had pinned signs to an upside down American flag that included a photo of President Bush with "Out now" written on it.

Their case marked only the third time in North Carolina since 1917 that the state's flag desecration statute had been enforced, according to the N.C. Administrative Office of the Courts.

U.S. Supreme Court decisions in 1989 and 1990 protected flag desecration as a form of expressive conduct under the First Amendment. The state law also was challenged and ruled unconstitutional in 1971.

"It's pretty apparent to us where the Supreme Court stands on this issue (flag desecration)," Duncan said. "Also, it has been dealt with in this state in 1971, and we do not feel like we can successfully prosecute the desecration of the flag statute."

Scarborough issued charges against the Kuhns on July 25 at their Brevard Road home in Asheville.

An ensuing scuffle with the deputy put the Kuhns in jail on charges of assault on a government employee, obstruction and flag desecration, all misdemeanors.

Debbie Kuhn said Thursday she was relieved all charges had dropped but wants to the deputy who charged them fired.

Scarborough could not be reached.

The flag confiscated by the Sheriff's Office was returned. Kuhn said she and her husband plan to post their flag again. It also will be flown upside down but not until the Sheriff's Office investigation is done.

"We do want to give Sheriff Duncan the chance to do the right thing," Kuhn said.

The couple have not filed a formal complaint with the Sheriff's Office, she said.

Duncan said he hoped the internal investigation would be done next week. The office has received "hundreds" of phone calls from people expressing both support and anger at Scarborough's actions, Duncan said.

As it's written in the code, state law prohibits anyone from knowingly mutilating, defiling, defacing or trampling the U.S. or North Carolina flags. The Kuhns have said they were displaying the flag upside down to protest the state of the country. An upside down flag is a universal distress signal.

The Sheriff's Office has said the signs pinned to the flag, not the fact that it was flying upside down, led to the charges.

Sheriff's reports allege the Kuhns assaulted Scarborough as he was trying to place them under arrest, including slamming the door, breaking a glass pane and cutting the deputy's hand.

The Kuhns said Scarborough broke into their house and violated their civil rights.

"The stories of the people who saw the incident and the deputy's stories are very, very close," Duncan said.

Mark Radford, a staff sergeant in the National Guard's Asheville-based 105th Military Police Battalion, is the one who told Scarborough about the Kuhns' flag. Radford would not comment Thursday.

Someone, not Radford, had complained to Asheville police about the Kuhns' flag days before their arrest. The city police officer investigated but did not issue a citation.

Duncan said it's normal practice to refer calls within city limits to Asheville police unless a crime is committed in the deputy's presence or in an emergency.

Scarborough, 25, started at the Sheriff's Office in 2003 as a reserve deputy. He was hired full time June 13, after serving seven months in Iraq with the National Guard.

"Whether we agree with someone's actions whether or not to hang the flag upside down, it does seem to be the intention of the Supreme Court, which is the supreme law of the land, to allow that," Duncan said. "So in other words, the Kuhns are allowed to do what they're doing.

"On the other side of that, if it weren't for young men like Deputy Scarborough, we wouldn't have those rights."

Duncan said the District Attorney's Office likely could have prosecuted the Kuhns on the assault and obstruction charges. Duncan said he wanted to make amends with both sides and bring closure to the issue.

"I don't think we gain anything by dividing the charges and going on," Duncan said. "We feel like the sooner we can move on from this, the better all parties involved will be."

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