On Sunday Bryton Mellott of Urbana, Illinois decided to send a political message to his social media followers. In order to do this, Mellot decided to take a photo of himself burning an American flag and uploaded to social media. Underneath the photo was a caption outlining his reasons and was finished with the hashtag ‘ArrestMe’. Unfortunately, that is exactly what the local police department decided to do. The wider point here is about how law enforcement is ignorant the law they are supposed to uphold, and that authoritarianism in all its forms needs to be combated.
Mellett was explicitly making a political point about how he was not proud of the United States due to the nation’s history of oppression and corruption. Here are his own words about the political motivation behind taking the photo:
“I would like to one day feel a sense of pride toward my nationality again. But too little progress has been made. Too many people still suffer at the hands of politicians influenced by special interests. too many people are still being killed and brutlized by a police force plagued with authority complexes and racism. Too many people are allowed to be slaughtered for the sale of gun manufacturer profits. Too many Americans hold hate in their hearts in the name of their religion, and for fear of others. …. I do not have pride in my country. I am overwhelmingly ashamed, and I will demonstrate my feelings accordingly. #ArrestMe.”
Following Mellott’s arrest, the Urbana Police Department released a statement saying that those who responded to his post had “threatened violence against Mellott and his place of employment, which fielded a large number of calls regarding the post”. At this point, therefore, it appeared that Mellott wasn’t actually arrested but was taken into protective custody, which is an important distinction. If this was how the story ended I wouldn’t be writing about it, but predictably there was another twist in the tale. Later in the day local police officers interviewed Mellott and his employer, and whilst citing the specificity and frequency of threats of violence, the department said “Mellett was placed under arrest for flag desecration”.
Firstly let’s deal with the fact that the law that prohibits flag desecration is clearly unconstitutional as it contradicts the First Amendment. Indeed you don’t need to take my word for it because in 1989 the Supreme Court heard the case Texas v. Johnson, in which it was agreed that flag burning “constitutes symbolic speech that is protected by the First Amendment”. The decision was 5-4, so was by no means a clear cut case, but it is worth pointing out that this wasn’t a left-right split. Although the ideologically conservative Chief Justice William Rehnquist dissented, the conservative strict constructionist Antonin Scalia was in the majority along with more liberal Justices like Thurgood Marshall.
But I believe this points to a wider problem within law enforcement. Police officers should know about basic principles of law, because without such a foundation instances like this occur. If there is a local ordinance or state law that is clearly unconstitutional, the police officer should be able to reason that that law shouldn’t be followed. I’m not saying that if a law is in a legal grey area then law enforcement should pretend that such a law isn’t on the books, but if there has been a Supreme Court ruling that clearly invalidates this local law, police should respect that. In such a situation, either the police aren’t aware of how the Supreme Court works or they are actively arresting people for behaviour that they personally disagree with.
The second scenario is much more sinister however there are countless examples of people being arrested for having views that oppose mainstream opinion. Indeed one can point to the anti-Vietnam war protests, the Civil Rights movement, and the Red Scare for many cases of people being arrested without legal basis. There appears to be an approach in many police departments that favour authoritarian tactics. This shouldn’t be surprising as police officers are essentially pawns of state authority, and police militarisation is evidence of this attitude, but this puts the police in an compromising position.
The theoretical purpose of the police is to maintain law and order before disputes are resolved in the judicial system. However if police officers re arresting people for no legal reason before releasing them without charge, this puts a large amount of power in the hands of the police that I am not comfortable with. Indeed the legal system has evolved to such a position where ‘resisting arrest’ is also a criminal offence, despite being a natural human impulse. There needs to be greater transparency and widespread education about the civil rights of the citizenry in order to combat this increasingly authoritarian strain of policing.
It goes without saying that not all police officers abuse their powers, but if there is scope for unaccountable abuses of power, the people shouldn’t have to hope the person pulling their car or marshalling their protest isn’t going to arbitrarily arrest them. There needs to be a systemic change that makes police officers accountable, and if that means sending some officers to prison so be it.