An attorney for a Kansas woman accused of violating Nebraska’s flag-desecration law has lost the latest round in a fight to invalidate what he believes is an unconstitutional statute.
Omaha attorney Bassel El-Kasaby said Monday that despite the Nebraska Supreme Court’s recent decision to dismiss his appeal, the legal battle he’s waging on behalf of Shirley Phelps-Roper will continue.
Phelps-Roper was accused in 2007 of letting her then-10-year-old son stand on an American flag at the funeral of a National Guardsman in Bellevue. Authorities also say she wore a flag as a skirt that dragged on the ground.
She is a member of the Westboro Baptist Church of Topeka, Kan., whose members believe U.S. troop deaths are punishment for the nation’s tolerance of homosexuality.
Besides being accused of violating the flag law, which is a misdemeanor, she also was charged with disturbing the peace, contributing to the delinquency of a minor and negligent child abuse stemming from the protest. El-Kasaby argues that the application of those charges — not the charges alone — is unconstitutional because they stem from the flag-desecration charge, which he says is in itself unconstitutional.
Nebraska’s law against flag desecration bars intentionally “casting contempt or ridicule” upon a flag by mutilating, defacing, defiling, burning or trampling it. Prosecutors have argued that the law prohibits only those five methods.
But El-Kasaby has argued that those methods are open to interpretation and leave people confused about how they can legally protest using the flag.
Ambiguous, too, is a law that dictates when he can pursue an appeal, he said Monday.
El-Kasaby originally filed the appeal in March, after a Sarpy County judge denied his request to throw out the charges. A district judge ruled in June that the lower court’s decision isn’t something El-Kasaby can appeal. That is the same issue that prompted the high court’s ruling, issued last month, he said.
“We’re just kind of stuck on a procedural snag,” he said.
Sarpy County prosecutors did not immediately respond to a phone message left Monday seeking comment.
El-Kasaby has filed a request for the high court to rehear the case and said he’s prepared to take other steps, including challenging whether there was sufficient evidence to set the case on the path to trial.
“I’m going back into it, regardless, I’m going back,” he said.
Phelps-Roper, who has previously denied violating any law, said she once saw the case as a battle to uphold the right to free speech. Today its outcome is of little consequence when the nation’s destruction is imminent, she said.
“Each day that that case lingers, there’s just more wrath upon this nation,” she said.
Copyright ©2012 Omaha World-Herald®. All rights reserved. This material may not be published, broadcast, rewritten, displayed or redistributed for any purpose without permission from the Omaha World-Herald.
