Justice Works

What’s Wrong With This Picture?

A Bernalillo County Metropolitan Court jury found University of New Mexico student and Air Force veteran Peter Lynch, 31, guilty of a misdemeanor count of criminal destruction of private property on Wednesday.

Lynch removed and destroyed a Mexican flag that was inadvertently left to fly over the weekend at the University’s administration building. The flag was raised during a ceremony on Friday Sept. 14, 2007, recognizing Mexican Independence Day on the coming Sunday. At the end of the day, an Air Force ROTC flag detail failed to lower the flag, believing the sponsors of the independence-day event would remove it. They didn’t.

On Monday, the Mexican flag was still flying and because of a further communication error, a different military ROTC unit’s flag detail that had just started a new monthly rotation, the flags in front of Scholes Hall were not raised.

Lynch attempted to bring what he saw as a violation of the flag code to the attention of university officials. When the UNM administration did not immediately respond, he took it upon himself to remove the flag. He destroyed the flag and presented it to UNM Air Force Studies commander, Lt. Col. Curtis Johanson. I observed Lynch yelling at Johanson, trying to catch his attention and moments later, running the opposite direction across campus.

Metropolitan Court Judge Clyde DeMersseman, left, sentenced Lynch to: six-months probation, 48-hours of community service, completion of an anger management course, and was ordered to pay restitution; the cost of the destroyed flag.

Lynch was ordered to replace the flag as part of an administrative process conducted by UNM, as a condition to continue in good standing as a student.

One of the sponsors of the on-campus celebration of the Mexican Independence Day event and owners of the destroyed flag, “El Centro de la Raza” –The Center for the Race– claimed that Lynch committed a hate crime.

So what’s wrong with this picture?

Justice works.

With the finding of the six-person jury, the arguments made by Lynch, that his destroying the Mexican flag was a lawful act because he was protecting the American flag and El Centro de la Raza’s claim of a hate crime, were tempered.

The jury seems to have gotten it right. They looked at the case as a destruction of property. The politics that have attached to this incident were not allowed to cloud the verdict. Lynch took property that was not his and destroyed it. He admitted to doing so, through his lawyer’s opening statement, and was found guilty.

He wishes, even after being sentenced, to try to excuse his actions by claiming to be a patriot.

He and his supporters continue to claim that the Mexican flag flying by it self violates federal law. Not true.

The flag code of the United States is not a criminal law. It is, at best: a guide, a mere suggestion or protocol. I am continually amazed that people who yell loudest about some “unpatriotic display” sometimes wrap themselves in the flag in violation of the same flag code.

A motorcycle group led by an old law enforcement buddy, Paul Caputo, who is a former Marine, rode to the swearing in ceremony of UNM President David Schmidly, to present him with an American flag. Members of the group made statements that they might engage in a demonstration if Schmidly were to snub them. Instead, Schmidly met and accepted the flag. Ironically, as seen in Daily Lobo photographer Javier Zamora’s picture, Schmidly wore a tie covered with American flags; a violation of the flag code.

There are too many comments on blogs and websites that are simply wrong on the meaning of the flag code and the law, to address them all.

Here are some examples of claimed flag code violations:
The American flag does not fly above any other nation’s flag, as claimed; they fly at the same level. The American flag flies to the far left when facing the display.

Veteran David Ethridge watches President Schmidly give a television interview. The display of the flag on Ethridge’s coat is a violation of the flag code.

Many question why the Lynch case arrived in court anyways? Part of the answer is found in the juxtaposition of Lynch’s own words. Many commenters point out that Lynch offered El Centro a replacement flag and a purported apology. Yet after the trial Lynch was still making statements that were inconsistent with a sincere apology.

El Centro described the original flag as, “an irreplaceable gift from a former student,” and did not accept Lynch’s offerings.

Analysis

The issues surrounding this event are very personal to those involved. Lynch was offended by what he saw as disrespecting the American flag. It bothered him so much that in his words to UNM police, he became overzealous.

Centro de la Raza felt that Lynch’s actions were a hate crime and sought prosecution as an illegal discrimination.

It was a simple act that constituted two crimes – theft and vandalism. Lynch was charged with only one crime – destruction of private property.


Several people have tried to link this event with the US Supreme Court’s ruling declaring desecration of an American flag as an unconstitutional violation of free speech. In that case, a young man, protesting the Republican National Convention in Dallas, burned an American flag that had been stolen from a pole in front of a city building. He was charged with a Texas state statute for desecration of a venerated object, the American flag. In the ruling’s footnotes, the decision points out that the young man had only been charged with the desecration; not for trespass, disorderly conduct, or arson.
Texas v. Johnson, 491 U.S. 397, Brennan, William J., Justice, (June 21, 1989) United States Supreme Court.

In Lynch’s Metropolitan Court petty misdemeanor case, he was not charged with desecration but vandalism, which seemed to be an acceptable charge under the Johnson Supreme Court ruling.

My Take

Politics aside, this is a simple case.

Had Lynch simply removed the flag and presented it to some university official, there would have been: no issue, no crime, no trial, no problem, and no debate.

Politics aside? Not likely. This event pushed too many buttons. It struck nerves for so many different people. It showed some of the great divides that our community is currently suffering. It didn’t bring out the best nature of our country.

Xenophobia, hate, intolerance, distrust, fear, false-patriotism, misunderstanding and ignorance are only some of the negative emotions that are brought to light.

The jury in the criminal justice system is a remarkable concept. People, who live in the community, are aware of what happens around them. They collectively bring experience, wisdom, reason and order to the question of guilt or innocence.

They got it right. After a trial, the presentation of evidence, witnesses and cross examination, they weighed Lynch’s right to confront his accusers and right to testify; though he chose not to take the stand, his attorney capably represented him and made his argument abundantly clear. The jury decided in less than a half-hour of deliberation.

In the end, those who wanted it got their day in court. Neither got their way. Lynch’s “patriotism” defense did not excuse his act. For the owners of the flag, Lynch’s act was not seen as a “hate crime.”

The controversy offers an opportunity for our community to talk about the issues that this event sparked. There is a divide that the jury’s finding is not currently closing.

Several posted comments on other blogs, have equated the celebration of Mexican Independence with the participants being illegal immigrants. Some suggest that members of Centro de la Raza are somehow either not citizens of the United States or are not entitled to express their pride, feelings, or perceived grievances through a group that refers to itself as “the race.” It seems that some folks are offended by the groups name and express anti-Hispanic rants, including being barred from the campus and deported. There was no indication that any illegal immigrants attended the Mexican Independence Day celebration. To the contrary, the campus events seemed to be attended by foreign, Hispanic and other students. Even I paused to listen to a band play on the plaza.

There are a few side issues worth mentioning:

I observed Lynch, the morning of the flag incident, running around the campus yelling. It had been my thought, that if I were still a uniformed police officer, he and I would have had a conversation to ascertain his behavior. In hindsight, it was pretty clear; angry, emotionally upset, but probably not mentally disturbed.

Lynch had been in the Air Force just 72-hours prior to this incident. I am glad that he no longer is in the military, as he is, what senior pilots say about young bold pilots, ”All airspeed – no azimuth.” He is all about passion, but with no discipline. He’s the kind of guy that will act brashly at the sight of the opposition’s point guard and attack instead of waiting for the full body to expose itself. Such premature actions could endanger fellow troops and give the enemy an opportunity to counter act. It is good that he is in school, because he might learn something about the flag that he had not learned as a 7-year old cub scout.

What had to be the most devastating witness in the case was UNM Air Force Studies commander, Col. Johanson. He is seen here, center, during the re-raising of the Mexican flag, held the following week as an expression of the University’s dedication to accepting foreign students in the campus community.

Johanson, on the stand, represented silently the position of military personnel and their philosophical regard for differences amongst people in our country: acceptance, tolerance, understanding, and restraint. It had been Johanson who had called UNM police about the incident.

Johanson is an Air Force Academy graduate, 22-year career officer. He wore his flight suit to court with embroidered patches on it including his: unit patch, name, rank and pilot’s wings, and an American flag. I don’t know his resume, but as a C-130 transport pilot, I doubt that he has not seen combat; he would be hard pressed to have missed it.

My buddy Sgt. Joe Schmedlap, in a posted comment on the Eye on Albuquerque rightly points out:

“Historically notable, the land where that flag was flying at UNM was part of the Republic of Texas from 1836-1845 based upon the Treaties of Velasco between the Texas republic and Mexico. In 1852 it was ceded by Texas to the US Federal government in return for the assumption of debt owed by Texas.”

The fact raises a question; why won’t New Mexico, and Albuquerque in particular, recognize the fact that between Texas independence and the end of the Mexican American War, when the current borders of New Mexico were realigned with Texas, half of what is now New Mexico was Texas?

On Albuquerque’s Old Town Plaza, there is a flag display purporting to show the flags of nations under which the city was ruled. They are Spain, Mexico, Confederate States of America, the United States of America, and the State of New Mexico. Interestingly, why is the Republic of Texas flag conspicuously missing?

The Albuquerque Journal posed an unscientific on-line poll asking the question, “Did Peter Lynch receive an appropriate penalty for destroying a Mexican flag?”

The majority, or 62.3 percent, of the 962 people participating in the week-long poll agreed with the answer, “Should have gotten a medal instead,” with 621 respondents.

The other options were: “About right for what he did,” of which there were 256 responses for 26.1 percent and “Not enough of a punishment,” received 105 responses for 10.7 percent.

In the very formulation of the response, the Journal exposes its seldom seen, but often perceived ethnic bias against Hispanics and in particular, Mexican students at UNM.

The final thought is that the flag is a symbol; meaning different things to different people and a perceived insult to one who considers them self a patriot, does not authorize or excuse violating another law. It is the symbol of “We the People.” All the people who are in the country, whether some welcome all of them or not.


The flag code should not be taken so seriously, because it is inconsistent with the First Amendment’s guarantee of free expression. It should not bother a true patriot, wrapped in the flag, when someone expresses their displeasure by destroying or burning a flag that they own.

To do otherwise would just be un-American.