SCRANTON – The City of Pottsville has motioned to dismiss an activist’s constitutional challenge of its open-burning ordinance with respect to burning flags as a method of political protest, with the case being one of several the plaintiff has filed statewide.
Gene Stilp first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Aug. 12 versus the City of Pottsville.
“On Aug. 13, 2020, Stilp appeared at the Schuylkill County Courthouse in Pottsville, Schuylkill County, Pennsylvania. The sidewalk and street where Stilp appeared were open to the public and a public forum. Stilp appeared for the purpose of conducting a political protest for the purpose of burning four 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, a Trump campaign flag sewn together with a Confederate flag and a combined flag consisting of Trump campaign flag sewn together with a Confederate flag, a Nazi flag and a former Soviet Union flag,” the suit said.
“Stilp’s intended purpose in burning the Trump Protest Flags was to publicly oppose policies of the Trump Administration and Trump reelection campaign, which Stilp asserted were racist and not beneficial for citizens. Upon his arrival, Stilp notified the Schuylkill County Sheriff’s Office that he would be conducting a public protest involving the burning of the Trump Protest Flags on the sidewalk by the courthouse. The sheriff’s office contacted law enforcement to advise of Stilp’s public protest and intention to burn the Trump Protest Flags.”
A local police officer and an employee of the City of Pottsville, Officer Jonathan D. Randolph, advised Stilp of the City’s ordinance “against burning in this fashion.”
“Wishing to exercise his First Amendment rights, Stilp advised Randolph that he intended to proceed with the political protest and burn the Trump Protest Flags. Randolph summoned Fire Chief Misstishin who stated to Stilp that igniting flags was hazardous. Sergeant O’Toole and Captain Morrow of the City’s police department also issued verbal warnings to Stilp, warning him not to burn the flags,” the suit stated.
“Wishing to proceed with his political protest and after ensuring that the area in which the protest was scheduled was safe to ignite the Trump Protest Flags, Stilp began with his political protest as planned and started explaining the meaning of the various Trump Protest Flags. During this time, the Humane Fire Company arrived, as well as the Pottsville City Street Department. After concluding his explanation of the meaning of the Trump Protest Flags, Stilp lit one flag with a match while it was inside a steel trash can.”
Stilp was then placed under arrest by Randolph and the Humane Fire Company extinguished the fire. Randolph then took Stilp into custody, transported him and put him in lock-up, where Stilp was fingerprinted and held handcuffed to a cot for two hours, while awaiting an appearance before a magisterial district judge.
Stilp was charged by Randolph in Magisterial District Court with disorderly conduct, a third-degree misdemeanor, and with violating a local City ordinance, graded a summary offense under Section 189-37 of the City’s Ordinances (the “Outdoor Burning Ordinance”).
The City’s Outdoor Burning Ordinance prohibits “the burning of solid waste, recyclable materials, yard waste and construction debris within the City of Pottsville.”
“Stilp acted without intent to cause public inconvenience, annoyance or alarm and did not recklessly create a risk thereof when conducing a political protest on Aug. 13, 2020. Stilp did not create a hazardous or physically offensive condition by way of the political protest. Stilp ensured no combustible materials were closer than 25 feet to the steel trashcan wherein the Trump Protest flags would be burned, and he attended the fire the entire time it was lit. Stilp further ensured that no hazardous conditions existed the day of the protest, and Stilp maintained a method of extinguishment to put out the fire after the political protest was complete. Furthermore, Stilp is a certified firefighter and is knowledgeable of safe burning procedures,” per the suit.
“Because Stilp’s burning of the Trump Protest Flags was permitted by City ordinances, the City’s enforcement of its ordinances was an act of suppression of Stilp’s First Amendment rights and part of a policy or custom which directed or authorized law enforcement to take enforcement action that prohibit the burning of all flags in political protests. Additionally, to the extent the language of the Open Burning Ordinance fails to clearly state whether a fire used for political demonstration is allowed under the ‘recreational purposes’ exception, the Open Burning Ordinance is unconstitutionally vague by allowing the Borough to enforce the Open Burning Ordinance in an arbitrary and discriminatory manner.”
UPDATE
The defendants motioned to dismiss the case on Oct. 17, noting that a brief going into further detail as to the reasons behind the prospective dismissal is forthcoming.
“Defendants City of Pottsville and Officer Jonathan D. Randolph, by and through their undersigned counsel, Siana Law, LLP, file this motion to dismiss plaintiff’s Complaint for failure to plead valid causes of action pursuant to Federal Rule of Civil Procedure 12(b)(6),” the motion stated.
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 defendants are represented by Andrew M. Rongaus of Siana Law, in Chester Springs.
U.S. District Court for the Middle District of Pennsylvania case 3:22-cv-01266
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com