SCRANTON – An activist who recently dismissed his constitutional challenge of the City of Williamsport’s open-burning ordinance with respect to burning flags as a method of political protest, has now filed substantially-similar litigation against the City of Scranton.
Gene Stilp filed suit in the U.S. District Court for the Middle District of Pennsylvania on July 28 versus the City of Scranton.
“On July 30, 2020, Stilp appeared at the Lackawanna County Courthouse in the City of Scranton to conduct a political demonstration 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 says.
“Stilp’s intended purpose in burning the Trump protest flags was to publicly oppose policies and positions espoused by then President Trump which Stilp asserts are racist and contrary to the best interests of the United States. The area in front of the main doors of the Lackawanna 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, approximately four law enforcement officers employed by the City stood by and observed Stilp. One officer approached Stilp and warned him not to burn the Trump protest flags, threatening to cite Stilp for burning them. Stilp was also asked to produce his driver’s license.
“Wishing to exercise his First Amendment rights, Stilp proceeded to ignite the first of the Trump protest flags over the steel trash can he had brought to ensure fire safety at the protest. Upon igniting the flag, a City law enforcement officer approached Stilp and extinguished the fire as soon as it was lit, then proceeded to further spray fire extinguisher fluid inside the trash can Stilp had brought for the protest in which to burn the flags. The law enforcement officer warned Stilp that if he tried to ignite another flag, it too would be extinguished,” the suit states.
The City’s Burn Ordinance “prohibits a person from conducting a salvage operation or destroying refuse by open burning”, such as “garbage, rubbish, trade waste, rags, old clothes, leather, rubber, carpets, wood, excelsior, paper, ashes, tree branches, tree leaves, yard trimmings, furniture, tin cans, glass, crockery masonry and other similar items.”
“The Burn Ordinance facially admits of no exception for burning flags in public protest and thus violates the First Amendment guarantee to freedom of expression. The Burn Ordinance is also unconstitutional as applied, because it was actually enforced against Stilp by the law enforcement officer extinguishing the burning flag. Because of the actual enforcement of the Burn Ordinance against him, Stilp fears conducting further protests involving flag burning in public places within the City of Scranton,” per the suit.
“In addition to issuance of a citation for a summary offense against him, Stilp also reasonably fears the prosecution of a civil action against him for abatement as the Burn Ordinance authorizes. Stilp desires to hold one or more additional flag burning protests within the City, including both on courthouse grounds and in public areas of the City. Stilp has no adequate remedy at law for prospective enforcement of the Burn Ordinance against him.”
For multiple counts/violations of his First Amendment rights, the plaintiff is seeking a declaration that the Burn Ordinance is unconstitutional, a permanent injunction of the Burn Ordinance against him, attorney’s fees, costs of suit and such other relief as is just and equitable.
The plaintiff is represented by Aaron D. Martin and Sarah E. Straub of Mette Evans & Woodside, in Harrisburg.
The defendant has not yet retained legal counsel.
U.S. District Court for the Middle District of Pennsylvania case 3:22-cv-01172
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com