The 8th Circuit made short shrift of the absurd arrest of Frank Snider for desecrating the flag. No big surprise there, as Snider v. City of Cape Girardeau was a slam dunk. But then it raises the hoary question of how neither the cop, the prosecutor nor the judge who signed off was aware that the law in the United States of America allowed a guy to use the flag to express himself? After all, it’s only been the law since 1989, when the Supremes decided Texas v. Johnson.
But the circuit went on to deal with the issue of Police Officer Matthew Peters’ qualified immunity. After all, it’s not like Peters busted Snider on the spot. Oh no. He followed the procedure that we all hope an officer would follow.
Upon Officer Peters’ returning to the station, another officer informed him of a Missouri statute prohibiting flag desecration. After reviewing the statute, Mo. Rev. Stat. § 578.095, Officer Peters drafted a probable cause statement indicating he believed Snider had committed the criminal offense of desecration of the American flag. He submitted the probable cause statement to Cape Girardeau County prosecuting attorney H. Morley Swingle. After reviewing the probable cause statement, Swingle submitted a warrant application to the Honorable Gary A. Kamp, Circuit Judge of Cape Girardeau County, who issued the warrant for Snider’s arrest.
Peters did everything right. And yet, it was all wrong. The circuit opinion, by Judge Kermit Bye, had a problem to deal with, and so:
A reasonably competent officer in Officer Peters’ position would have concluded no arrest warrant should issue for the expressive conduct engaged in by Snider. Although it is unfortunate and fairly inexplicable that the error was not corrected by the county prosecutor [H. Morley Swingle] or the magistrate judge [Gary A. Kamp], no warrant should have been sought in the first place. Thus, the district court correctly concluded Officer Peters was not entitled to qualified immunity.
It was certainly unfortunate that neither prosecutor Swingle nor the Honorable Gary Kamp knew that Peters’ warrant app was for a flagrantly unconstitutional crime, but it was hardly “fairly inexplicable.”
Not only did the circuit hold the dope in the room accountable, while sloughing off the responsibility for the guys who are trained to know better, not to mention the Honorable guy whose duty it is not to sign off on crap like this, but it gave them a free “get out of stupid” pass on it.
There is an explanation for it, dear Judge Bye. You know it. I know it. We all know it. Trying to slide this under the radar by calling it “fairly inexplicable” is not only disingenuous, but cowardly.
The other day I made a point that the good faith presumption wasn’t to blame:
We are a nation of laws, not men. That’s because men are flawed. Don’t blame the law. Blame the cowards, the ignorant and the venal. And do something about them.
You had the opportunity to do something about it, Judge Bye. You failed. You probably thought no one would notice. You were wrong.