If the man who burned a flag outside a York County Walmart on July 4th hadn’t yelled threateningly while doing so, he would not have been charged with a felony, the county’s sheriff said Friday.
Instead, the 22-year-old flag burner would have been charged only with a misdemeanor for leaving a charred burn mark in the store parking lot, York-Poquoson Sheriff Danny Diggs said.
As it turned out, the felony charge now pending against Mitchell Lee Stauffer has its roots in a 1952 state law originally designed to stop people from burning crosses as a means of racial intimidation.
Stauffer, 22, of York Street in Williamsburg, admits to setting fire to the flag outside the Walmart, on Route 17 in Tabb, on Independence Day morning, according to sheriff’s office charging documents.
A criminal complaint affidavit at York-Poquoson General District Court says Walmart employee John Weirich Jr. was outside taking a break at 9:13 a.m. when a car pulled up outside the store in a gold Honda and put on its hazard lights.
The man, wearing a red shirt and khaki shorts, set the flag flat on the ground, then got a gas can from his trunk and doused the flag with gasoline.
He held a lighter to it and set it ablaze.
“This country (expletive) hates you,” he was heard to say, according to a criminal complaint by York Sheriff’s Investigator D.E. Micket. “It wouldn’t give a s*** if you die.”
He then closed the trunk and drove off.
A Walmart employee told the Daily Press Friday that employees heard the man shouting inside the store minutes before he burned the flag near the store’s home and garden area outside.
“He was just going off on the flag and the world and how America was corrupt,” the employee said, saying that “10 or 15” people — workers and customers — witnessed the flag burning.
The incident “made bystanders very nervous,” the Sheriff’s Office said.
“Mr. Weirich advised that he was very nervous and scared because ‘crazy people do things all the time, like shootings,’ ” Micket’s affidavit said. “He said that what the man did ‘seemed very terrorist like.’ “
Deputies were called in, and investigators retrieved two videos — one from the Walmart security system and another recorded by Weirich on his cellphone camera.
With the car’s license plate number and a law enforcement database, a sheriff’s deputy tracked down Stauffer at his Williamsburg apartment and arrested him there.
Diggs, for his part, said in a social media post that “the burning of our great American flag is very offensive to most people, including me.”
Still, the sheriff said, courts have ruled that flag burning is protected speech under the First Amendment, “and is not per se illegal.”
But in this case, Diggs said, Stauffer went too far by scaring people.
“He could have burned a beach towel and the (charge) would have been the same,” Diggs told the Daily Press Friday. “He made some offensive statements that made people intimidated and in fear … They thought that maybe he was going to get in his car and run them over, or get a gun and do something else that was violent.”
If Stauffer had burned the American flag without acting in a threatening way, Diggs said, he would have been charged only with a misdemeanor for leaving a charred mark in the parking lot without the owner’s permission.
“Anyone who thinks that they can go onto Walmart property and set stuff on fire, and there’s no consequences — the vast majority of citizens don’t think that’s appropriate behavior,” Diggs said.
About 10 customers interviewed by the Daily Press outside the Walmart on Friday uniformly said they were against flag burning — and didn’t have a problem with Stauffer’s arrest.
“I think it was just messed up,” Kimberly Middlebrooks, 23, of York County, said of the flag burning. “The fact that he did it in a public place and on the Fourth of July was very disrespectful.”
“How can you be in America and burn the American flag?” asked Betty Dixon, 75, of Newport News. “It’s terrible.”
“A lot of people gave up their life for the flag, and for someone to do that is disrespectful,” added Jason Rodriguez, 36, of Newport News, who recently moved from New York with his wife and children and has family and friends in the military.
Mike Mirich, 56, of York County, said he knows courts have ruled that flag burning is protected free speech, but he says it can’t be done with yelling and threats.
“There’s a right way and a wrong way,” said Mirich, who works as an Air Force civilian after years of active duty. “More and more people are just ready to go off in violent ways over things that years ago just didn’t bother people … And people are following through on a lot of the threats.”
Stauffer was charged with “burning an object with the intent to intimidate” — a felony punishable by up to five years in prison and a $2,500 fine.
The law outlaws burning an object “with the intent of intimidating a person or group of persons.” That’s either in a private place without the owner’s permission, or in a public place if it’s done “in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.”
The Walmart parking lot is considered a “public place” under the law, given that it’s open and publicly accessible.
Stauffer, who court documents said is unemployed and has lived in Williamsburg all his life, was released on a $1,000 bond. He doesn’t yet have a lawyer but has an arraignment scheduled for Monday in York General District Court.
Reached by Facebook message this week, Stauffer did not respond to a request for an interview. Instead he sent the Daily Press a lengthy and unusual statement saying he would be made “to get a psych evaluation for the third time.”
“Predict they will slap on ‘delusions of grandeur,’ ” Stauffer wrote in the message. “Predict I will be hospitalized.”
“You can try to silence me,” he wrote. “You can try to call me crazy. But you will not stop the seeds I have planted.”
Jud Campbell — a professor and First Amendment expert at the University of Richmond School of Law — said he doesn’t see the arrest as a violation of Stauffer’s rights.
A good way to analyze the case, he said, “is to imagine if someone had burned something inoffensive” — such as a white pillowcase — while yelling threats. “Then ask yourself whether the law would still apply,” Campbell said. “If so, then the arrest is perfectly fine.”
“If the law allows police officers to arrest someone for burning a white pillowcase in a Walmart parking lot and yelling in a threatening way, then police officers can also arrest someone for doing the same thing with an American flag,” he said.
A constitutional problem would arise, Campbell said, if the law barred someone from burning a flag specifically — or any “venerated object” — with an intent to intimidate. That wouldn’t pass constitutional muster, he said, “because it targets the offensiveness of the message rather than the objective harmfulness of the conduct.”
Campbell said Stauffer could fight the charge “if he can show they are singling him out” for flag burning — “if he could prove that police haven’t arrested people who have done the same thing with other objects.”
But that would be difficult to prove, he said.
The law Stauffer was charged with has its roots in Virginia’s 1952 cross burning statute that was struck down as unconstitutional about 16 years ago.
In the 2003 ruling, Virginia v. Black, the U.S. Supreme Court ruled 5-4 that the law — “cross burning with intent to intimidate” — violated the First Amendment.
The Supreme Court didn’t have an issue with the state’s ban on cross burning itself, given that practice’s history in the United States as a powerful form of racial intimidation.
But the high court said one of law’s provisions — essentially saying that any and all cross burnings are inherently intimidating — was unconstitutional. (Under the statute, prosecutors didn’t need to prove an intent to intimidate, only that someone had burned a cross).
“The First Amendment does not permit such a shortcut,” Supreme Court Justice Sandra Day O’Connor wrote for the majority.
In 2002, with that law on the way to being found unconstitutional, the General Assembly passed a replacement statute barring someone from burning “any object” — not just a cross — with an intent to intimidate. (They also did away with the provision that the burning be seen as inherently intimidating).
The bill sailed through with only one no vote in both chambers, and it was signed into law by Gov. Mark Warner.
But though Diggs said his sheriff’s deputies would have arrested Stauffer even if he had burned a beach towel outside the Walmart while yelling, the sheriff acknowledged that wouldn’t have caused the stir that this case has.
“The flag is what makes it interesting,” he said.
