COUNCIL BLUFFS — Council Bluffs and Red Oak are named in a lawsuit seeking to stop police from enforcing Iowa laws that make it a crime to disrespect the American flag.
The American Civil Liberties Union of Iowa filed the class-action suit Thursday on behalf of Westboro Baptist Church of Topeka, Kan., whose members are known for protesting with anti-gay messages outside funerals.
Police chiefs in Council Bluffs and Red Oak threatened to bring criminal charges against members if they desecrated flags during protests between 2010 and 2012, the lawsuit claims.
However, at least one Council Bluffs official said he has no recollection of discussing flag desecration with Westboro members.
On April 22, 2011, Westboro members picketed in Council Bluffs in connection with the funeral of Sgt. Brent Maher.
According to the lawsuit, a Council Bluffs police officer advised Sam Phelps-Roper, a church member and protester, that a state law prohibited flag desecration.
“After checking with headquarters, the Council Bluffs police officer then informed Sam Phelps-Roper that the protesters’ use of the U.S. flag would be limited to displaying it upside down,” the lawsuit stated.
Council Bluffs City Attorney Richard Wade said his office had not seen the petition Thursday afternoon, but he has no recollection of any discussion over flag desecration.
“We will have to talk with the police officers allegedly involved and see if they have any recollections,” Wade said.
On Dec. 8 Timothy Phelps and Elizabeth Phelps led another demonstration in Council Bluffs. Before that protest, Timothy Phelps alleges, a Council Bluffs police official told him that the flag desecration statute would be enforced.
The lawsuit alleges the officers in both cases were “following a departmental decision or policy regarding continued enforcement of Iowa’s flag abuse statutes established by (Council Bluffs Police Chief) Ralph O’Donnell.”
A message left for O’Donnell was not returned Thursday afternoon.
Wade said the only talks he recalls having with the church members were about the Iowa law requiring protesters to stay 500 feet away from funerals.
Red Oak Police Chief Drue Powers confirmed that he did threaten to enforce the law during church protests outside funerals for a soldier and a motorcycle accident victim.
“It still is on the books,” he said. “I was not aware of any case law indicating otherwise.”
The ACLU alleges law enforcement officials at those protests cited their duty to enforce Iowa’s flag desecration laws because the laws were “still on the books,” even though those laws were ruled unconstitutional by U.S. Southern District of Iowa Judge Robert Pratt in 2007.
ACLU of Iowa Legal Director Randall Wilson, who is representing the Phelpses, said it is not uncommon for laws that are ruled unconstitutional to remain on the books.
One Iowa law says it’s a misdemeanor to deface, mutilate, trample or disrespect the American flag. Another says it’s disorderly conduct to disrespect the flag to “provoke or encourage another to commit a public offense.”
Pratt ruled in 2007 that the laws were unconstitutional because they failed to “put a person of reasonable intelligence on notice of what conduct is prohibited.” It was unclear how they defined terms such as “flag” and “disrespect,” Pratt ruled.
In response, lawmakers amended the disorderly conduct law to be more specific. But the ACLU’s Wilson said the law remains unconstitutional because it’s unclear to the average person what conduct toward a flag would provoke someone else.
This report includes material from the Associated Press.