U.S. v. Cary

• Decision Date: 26 February 1990
• Docket Number: No. 88-5458,88-5458
• Citation: 897 F.2d 917
• Parties: UNITED STATES of America, Appellee, v. William Charles CARY, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 917

897 F.2d 917

UNITED STATES of America, Appellee, v. William Charles CARY, Jr., Appellant.

No. 88-5458.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 10, 1989.

Decided Feb. 26, 1990.

Cecilia Michel, Minneapolis, Minn., for appellant.

Thorwald H. Anderson, Jr., Minneapolis, Minn., for appellee.

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

William Charles Cary, Jr. (Cary) appeals his conviction ¹ of knowingly casting contempt upon a flag of the United States by publicly burning it in violation of 18 U.S.C. Sec. 700 (1988). ² The district

                court, 3 which upheld Sec. 700 against constitutional attack, 4 sentenced Cary to three months in custody and imposed a special assessment of twenty-five dollars.  On appeal, Cary challenges the constitutionality of the federal statute only as applied.  The issue presented on appeal is whether the Supreme Court's recent opinion in Texas v. Johnson, --- U.S. ----, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), which held the Texas flag desecration statute 5 unconstitutional as applied, mandates that we reverse Cary's conviction. 6   Because the facts of this case are distinguishable from those in Texas v. Johnson, we believe the federal government's interest in halting and preventing further breaches of the peace in front of its Armed Services Recruitment Center justifies Cary's conviction for flag burning.  Therefore, we affirm Cary's conviction.  In so doing, we also affirm, albeit on other grounds, 7 the district court's finding that Sec. 700 is constitutional as applied
                

I.

On March 18, 1988, several hundred demonstrators ⁸ gathered in uptown Minneapolis at the corner of Lake Street and Hennepin Avenue to protest the decision of the United States Government to send 3,200 troops to Honduras. Tr. at 116-17. ⁹ In order to protect demonstrators from motorists, the Minneapolis Police Department closed portions of the streets one block in either direction of the intersection of Lake and Hennepin with wooden barricades. Tr. at 99. Furthermore, the inspector of the Minneapolis Police Department ordered the officers to refrain from making arrests during the demonstration. Tr. at 53. Cary agrees that in providing an atmosphere where demonstrators would be safe from At approximately 4:50 p.m., Lisa Cary, Cary's sister, arrived at the protest, which at that time was still located at the intersection of Hennepin and Lake. From her involvement in the demonstration until her brother burned the American flag in front of the Armed Services Recruitment Center, Lisa Cary witnessed five other flag burnings. ¹⁰ Tr. at 100-01. No arrests were made in connection with these other flag burnings. Furthermore, there is no evidence in the record that any of these five flag burnings were accompanied by violence.

traffic, the police displayed a cooperative spirit. Tr. at 138.

During the course of the demonstration, the protesters marched ten blocks down Lake Street to the Recruitment Center. Tr. at 100, 101, 124. When Cary arrived at the Recruitment Center wearing a slit American flag as a poncho, ¹¹ a crowd of people were still demonstrating in front of the building. There was a man speaking to the crowd through a bull horn. Tr. at 126. At that point, however, the character of the demonstration turned violent.

One unidentified individual charged the Recruitment Center and broke its front windows. Tr. at 58; Government Exhibit No. 4 (video). ¹² People began yelling and leaving the scene. Tr. at 101-02, 125; Government Exhibit No. 4. Another unidentified vandal repeatedly shot roman candles into the Recruitment Center through the broken windows. Tr. at 66; Government Exhibit No. 4. Lisa Cary testified that she and several other demonstrators left the scene because of the violence. Tr. at 101-02. Even Cary characterized the situation as "dangerous." Tr. at 126. He recognized that the violence was destructive and engaged in for "fun." Id. ¹³

Upon hearing the breaking of the windows, Cary, who was across the street talking to his sister, walked towards the building. He encountered the man shooting the roman candles through the broken windows. Id. Within approximately two minutes after Cary heard the windows break, an unidentified woman came up to him, handed him a flag and told him to light it. Tr. at 146. Instead of taking steps to calm the crowd or call the police, Tr. at 143, Cary lit the flag. Cary, the unidentified woman and two others held the flag as it burned. Government Exhibit No. 4. Cary then threw the burning flag into an alcove of the Recruitment Center. Id. Fearing the flames might ignite the building, ¹⁴ several unidentified persons rushed to the building to put out the fire. Id.

After the flag burning, the police received a description of the individual who had set the flag on fire. One-half hour later, the Minneapolis Police Department arrested Cary and questioned him on a charge of arson. Tr. at 80, 82-83. He was released three days later on Monday, March 21, 1988, and the arson charges were dropped. Tr. at 82-83. The woman who helped Cary burn the flag was not arrested because the police were unable to identify her despite a public appeal. Tr. at 84. There is no evidence in the record that A few days after his release, Cary was arrested for violation of 18 U.S.C. Sec. 700 after admitting his participation in the flag burning. On July 25, 1988, during a pretrial motion hearing, Cary moved to dismiss the indictment on the basis that the federal statute was unconstitutional. The district court denied this motion. After the government rested on August 22, 1988, Cary moved for a judgment of acquittal on the basis that the federal statute was unconstitutional. The district court also denied this motion. Nearly one year later, on June 21, 1989, the Supreme Court decided Texas v. Johnson, holding that the Texas flag desecration statute as applied was unconstitutional. Because the cases are distinguishable, we find Texas v. Johnson not to be controlling and we affirm on other grounds the district court's finding of constitutionality. Therefore, we affirm Cary's conviction.

the individuals whose violent conduct led Cary to conclude the situation was dangerous were arrested.

II.

Cary was convicted of knowingly casting contempt upon the flag of the United States by publicly burning it in violation of 18 U.S.C. Sec. 700. In order to determine whether or not this federal statute is constitutional as applied, we must first determine whether Cary's burning of the flag constituted expressive conduct, thereby invoking the First Amendment. See Texas v. Johnson, 109 S.Ct. at 2538. Second, if Cary's burning of the flag constituted expressive conduct, we must decide whether the government's interest is related to the suppression of expression. See id.; United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). If the interest is not related to expression, then we evaluate the federal government's actions under the O'Brien standard which is designed for "regulations of noncommunicative conduct." See Texas v. Johnson, 109 S.Ct. at 2538. If the government's interest is related to expression, then we must determine whether it can pass a far more demanding standard of scrutiny. Id.

A.

In order to determine whether Cary's flag burning constituted expressive conduct, we must inquire whether "[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it." Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730-31, 41 L.Ed.2d 842 (1974) (per curiam). Cary burned an American flag as part of a political demonstration against the government's decision to send American troops to Honduras. The nature of Cary's action was both expressive and political. Cary's conduct demonstrated an intent to convey his disagreement with American foreign policy in Central America. His actions were understood by those who viewed it as being in furtherance of that belief. Therefore, we hold that Cary's conduct was " 'sufficiently imbued with elements of communication' ... to implicate the First Amendment." See Texas v. Johnson, 109 S.Ct. at 2540 (dictum) (quoting Spence v. Washington, 418 U.S. at 409, 94 S.Ct. at 2730).

B.

In order to determine whether O'Brien's relatively lenient standard should apply to evaluate the government's punishment of Cary's conduct, we must identify the government interest at stake and then determine whether it is unrelated to the suppression of expression. See id. 109 S.Ct. at 2540. Two governmental interests are offered in this case to justify the conviction of Cary, just as Texas offered to support its conviction of Johnson: (1) preserving the flag as a symbol of national unity; and (2) preventing breaches of the peace. ¹⁵

                Texas v. Johnson controls the government's assertion of the first interest as a matter of law.  Suppression of Cary's expressive conduct pursuant thereto " 'is directly related to expression,' " precluding application of O'brien's more lenient standard.  See id. 109 S.Ct. at 2542 (quoting Spence v. Washington, 418 U.S. at 414 n. 8, 94 S.Ct. at 2732 n. 8).    As in Texas v. Johnson, this interest is not sufficient to justify Cary's conviction under the heightened standard of scrutiny.  See Texas v. Johnson, 109 S.Ct. at 2548.
                

However, unlike Texas v. Johnson, the government's interest in preventing breaches of the peace is implicated by the facts in this case. Cary inserted himself into a concededly violent situation. Windows were being broken. People were yelling. Roman candles were being shot into the Recruitment Center. As these events transpired, Cary walked into the fray. Within approximately two minutes after the violence first erupted, he and an unidentified woman burned an American flag. Because of the ongoing violence, there was an immediate threat that the burning would...