URBANA — An Urbana man who burned an American flag in July and was arrested and detained by police for doing so said he undertook the protest to speak out against gun violence and violence "against members of my queer community and against every community considered to be 'other.'"
Bryton Mellott explained his motives Thursday, a day after he filed a federal lawsuit against four members of the Urbana Police Department, who arrested him on Independence Day last year after he posted photos and comments on Facebook.
Police arrested Mellott under Illinois' 1989 flag-desecration law, which makes publicly mutilating or defacing an American flag a Class 4 felony. But the U.S. Supreme Court determined that year that flag-burning was protected free speech, invalidating that law.
The lawsuit, filed in U.S. District Court in Urbana on behalf of Mellott by attorneys from the American Civil Liberties Union and the Schiff Hardin law firm, asks to have the Illinois flag-desecration law declared unconstitutional, for a declaratory judgment that Mellott's constitutional rights were violated, for unspecified compensatory damages and for attorneys' fees and expenses.
The Urbana Police Department said Thursday that it had no comment on the lawsuit. The defendants named are officers Kenneth Sprague, Jeremy Hale, Matthew McElhoe and Andrew Charles.
Mellott, 22, said that his flag-burning and his July 3 post on Facebook were "calculated." In accompanying comments, he wrote, "I am not proud to be an American. In this moment, being proud of my country is to ignore the atrocities against people of color, people living in poverty, people who identify as women, and against my own queer community on a daily basis."
He concluded: "I do not have pride in my country. I am overwhelmingly ashamed, and I will demonstrate my feelings accordingly. #ArrestMe."
Although his Facebook comments did not include a mention of the shooting massacre at a gay nightclub in Orlando, Fla., where three weeks earlier 49 people were killed, Mellott said Thursday that it was on his mind at the time.
"Specifically, that's what made me think about this post," Mellott said. "That was what inspired a lot of the text that I had included with the picture."
At the time of Mellott's arrest, Urbana police said in a statement that they were concerned about the possibility of violence because of "the volume of responses and specificity of threat against his place of employment," the Savoy Wal-Mart.
But Mellott said Thursday that at the time of his arrest, "there was no mention that my being taken into custody was protective, and frankly, had there been the option of protective custody, I would have considered it as a reasonable person who was put into danger."
Rebecca Glenberg, an attorney for the ACLU, said that the Legislature and local police share the blame for Mellott's arrest, which the lawsuit claims was a violation of his constitutional rights.
"There's plenty of blame to go around," she said. "Certainly, the Legislature has a responsibility to remove statutes from the books when it's clear that they are unconstitutional, and so, yes, they have some responsibility here. And so do local police departments when their officers are not aware of these developments in constitutional law and aren't sufficiently trained on fundamental constitutional principles."
Ed Yohnka, a spokesman for the ACLU, said a 2013 review of the Illinois criminal code by the Legislature didn't include the flag-burning law and "was something they just missed, and they didn't take it off the books, or there might have been some fear that legislators wouldn't want to affirmatively vote to take this off the books."
Steve Beckett, an Urbana attorney who has undertaken First Amendment cases but is not involved in Mellott's, said "the Legislature doesn't always remove from the books" those laws that have been found unconstitutional.
"Somebody has to take responsibility to somehow annotate the statues, because if you're a police officer and you go to the book and that law is there, you're going to use it," he said. "There would be no reason for it to be off the books unless somebody repealed it. But then you stop and think about it, who's going to be the legislator who says, 'I'm against a law that criminalizes burning the flag?' Now you've got politics involved."
Although Mellott was arrested at the Savoy Wal-Mart on the morning of July 4, he was released that afternoon after police consulted with the state's attorney's office.
State's Attorney Julia Rietz opted not to charge him, citing the 1989 Supreme Court ruling.
Glenberg said it is "a privilege to represent individuals who are fearless in speaking out and who are willing to come forward to defend their constitutional rights on behalf of all of us."
She called the investigation into Mellott's flag-burning and his arrest "an unfortunate series of events. But the reason those events took place was because (A) we had an unconstitutional law still on the books, and (B) the police hadn't been adequately educated about the First Amendment and their obligations toward people who are exercising their right to free speech."
Mellott said Thursday that he didn't want his acts to be viewed as a sign of disrespect toward the military.
"I never really thought that it would come across that way," he said, explaining that his grandfather and two cousins have served. "I certainly didn't mean any ill will toward them. I have a great amount of respect for the military and people who serve."