WILLIAMSPORT – A prominent activist has voluntarily dismissed his case against the City of Williamsport that challenged the constitutionality of its open-burning ordinance and therefore, its prohibition on his being permitted to burn flags as a method of political protest.
Gene Stilp of Harrisburg first filed suit in the U.S. District Court for the Middle District of Pennsylvania on March 24, 2021, versus the City of Williamsport.
Stilp said he frequently protests political corruption and racial injustice and in the process, has publicly burned political flags in various locations throughout the United States as a means of protesting politicians and political ideologies he opposes.
One such politician was former President Donald J. Trump.
“On July 23, 2020, Stilp appeared at the Lycoming County Courthouse in the City of Williamsport to conduct a ceremonial political protest during which he intended to burn three flags: A Trump campaign flag sewn together with a Nazi flag, a Trump campaign flag sewn together with a flag of the former Soviet Union and a Trump campaign flag sewn together with a Confederate flag,” the suit stated.
“Stilp’s intended purpose in burning the Trump protest flags was to publicly oppose and protest policies and positions espoused by then-President Trump, which Stilp asserts are racist and harmful to the country. The area in front of the Lycoming County Courthouse is open to the public and is a traditional public forum.”
As Stilp prepared to burn the Trump protest flags in a metal trash can he had brought for the flag-burning ceremony, a law enforcement officer employed by the City stepped forward and ordered Stilp not to burn the flags, warning him that the fire would be extinguished as soon as it was set.
“Wishing to exercise his First Amendment right of political protest, Stilp proceeded to ignite the first of the Trump protest flags over the trash can. Upon igniting the flag, a City law enforcement officer extinguished the fire by spraying the can with a fire hose that filled the can with water,” per the suit.
“Stilp was then informed he was ‘under arrest’ and ordered to sit while law enforcement collected his personal information. City law enforcement confiscated the trash can, lighter and Trump protest flags.”
According to the City’s Burn Ordinance (which itself refers to the International Fire Code), a recreational fire is termed as “an outdoor fire burning materials other than rubbish where the fuel being burned is not contained in an incinerator, outdoor fireplace, portable outdoor fireplace, barbeque grill or barbeque pit and has a total fuel area of three feet or less in diameter and two feet or less in height for pleasure, religious, ceremonial, cooking, warmth or similar purposes.”
“The fire that Stilp lit met such requirements. Irrespective of any facial allowance for opening burning for political expression, the City interprets and applies the Burn Ordinance as though such fires are prohibited, though otherwise meeting the requirements of ‘recreational fire’ thereunder,” the suit said.
“Additionally, the vagueness of the language of the Burn Ordinance, with its lack of clarity as to whether a fire used for political demonstration is allowed under the ‘recreational fire’ exception, allows the City to enforce the Burn Ordinance in an unconstitutionally arbitrary and discriminatory way. Violations of the City’s Burn Ordinance are punishable as summary offenses, with penalties of up to $1,000 per violation and 90 days in prison.”
Stilp claimed he is under “reasonable fear of governmental restraint” of future expressive conduct, prosecution and other adverse civil proceedings, should he continue to stage political protests featuring flag burning in the City of Williamsport, and argues he has no adequate remedy at law to protect him from same.
The City filed an answer to the complaint on July 21, 2021, where it admitted that it asked Stilp to remain on the premises after the fire was extinguished and took possession of the trash can, lighter and items he burned – but otherwise, denied the remainder of the complaint in its entirety and provided affirmative defenses.
“Plaintiff’s complaint fails to state a claim against the City of Williamsport and fails to state a basis for Section 1983 liability. Plaintiff fails to state a claim for due process violations arising under the Fourteenth Amendment because plaintiff failed to obtain approval or a permit as was required for his conduct. Plaintiff was afforded the rights and privileges to which he was entitled under the United States Constitution and under all applicable state and federal laws,” the defenses read, in part.
“The City of Williamsport Burn Ordinance is a lawful fire prevention ordinance that does not violate the United States Constitution or any state or federal laws. Any First Amendment speech restriction present in the City of Williamsport Burn Ordinance is a lawful time, place and manner restriction on expressive conduct. The complaint fails to state a claim because the City of Williamsport Burn Ordinance is not void for vagueness under the Fourteenth Amendment.”
The City felt that the Burn Ordinance does not suppress expressive conduct in violation of the First and Fourteenth Amendments and that the complaint should be barred under the doctrine of sovereign immunity.
UPDATE
On July 27, counsel for all parties mutually filed a stipulation of voluntary dismissal, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).
“The parties to this matter, plaintiff Gene Stilp and defendant City of Williamsport, stipulate that this action is voluntarily dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii),” the stipulation stated.
The following day, U.S. District Court for the Middle District of Pennsylvania Judge Matthew W. Brann ordered the case closed.
“Upon consideration of the stipulation of dismissal, it is hereby ordered that this action is dismissed with prejudice,” Brann said.
The plaintiff was represented by Aaron D. Martin of Mette Evans & Woodside and Stephen B. Edwards of Lavery Law, both in Harrisburg.
The defendant was represented by Alissa Cardenas Harrison and Donald L. Carmelite of Marshall Dennehey Warner Coleman & Goggin, in Camp Hill.
U.S. District Court for the Middle District of Pennsylvania case 4:21-cv-00545
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com