Lawmaker worries that new bill could apply to stealing flags on a cupcake

A flag is a flag.

But a Senate panel agreed Thursday to make it so you’ll spend more time behind bars for stealing the Stars and Stripes.

On a 4-3 margin, the Judiciary Committee voted to make it a Class 6 felony to steal an American flag that is on display by a resident or business. That translates to a year in state prison and a fine of up to $150,000.

SB1009 is a major departure from existing laws that set the penalty for theft based on the value of the item stolen. So someone who takes property worth less than $1,000 faces up to six months in the county jail and a $2,500 fine.

The vote followed testimony of Charles Foley, a Tucson police officer who runs a program called “Flags for the Flagless.” Foley, who said he has provided 90 U.S. flags in Pima County, said some of those have been to replace flags that have been stolen.

“I don’t know who is stealing them,” he told lawmakers. Foley said he hopes that an enhanced penalty will provide a new deterrent.

Among the flags that Foley has replaced is one at Tucson’s First Southern Baptist Church. Actually, he had to replace that flag twice after back-to-back thefts, the second involving someone who used bolt cutters to steal not only the flag but also the rope.

“We see this as an attack on our ministry,” testified Edward Eddinfield, the church’s senior pastor. “To not have our flag out there changes us from boldly looking like we’re in business to like we’ve just closed our doors.”

And he said that the flag represents the freedom of people to worship as they want.

That testimony drew criticism from Sen. Martin Quezada, D-Phoenix.

“I’m a little bit troubled that we would seek to celebrate freedom by subjecting more people to possible imprisonment as felons for stealing this flag,” he said. “It’s a little bit contradictory, especially when we should be preaching forgiveness.”

But it wasn’t just the felony that bothered foes. It also is the fact that the enhanced penalty is reserved for only those who steal the U.S. flag.

Sen. John Kavanagh, R-Fountain Hills, the sponsor of SB1009, said that special treatment is justified.

He pointed out that his legislation imposes the felony penalty not on the theft of any American flag but only on one that is on display, versus one in a package in a store.

“My reasoning is that when you steal a flag that somebody is flying, not only are you stealing the object but you’re stealing that person’s First Amendment right to express themselves,” Kavanagh explained.

“They may be flying the flag in mourning for somebody who died,” he said. “It may be a patriotic statement. It may be a statement of protest.”

Quezada said if what’s being stolen is not just a flag but a constitutional right of expression, then Kavanagh’s bill is flawed.

“Is it not also stealing somebody’s First Amendment right to steal an LGBT pride flag, or a flag of another nation who that individual is supporting because we are at war with them and they want to make a political statement?” he asked. Quezada said even the “Don’t Tread on Me” flag that has become the symbol of “tea party” activists also would be denied the same protection.

Kavanagh agreed with Quezada — up to a point.

He said the First Amendment does protect expression of all viewpoints, much in the same way that he believes it is more than the simple crime of assault to hit someone if the purpose is to stop that person from giving a political speech. But Kavanagh said he’s not willing to expand his legislation to take in all flags.

“Sometimes you’ve got to draw a line in the sand,” he said. “And I drew it at the most venerated flag in this country, which is our American flag.”

Sen. Bob Worsley, R-Mesa, voted for the measure. But he had his own concerns with the wording of the bill.

He said that, as crafted, it includes anything that is an actual flag. And what that means, said Worsley, is someone could face prison time for taking a tiny flag stuck into a cupcake with a toothpick.

Kavanagh did not dispute that’s what the legislation said. But he told colleagues not to worry.

“I don’t know that any police officer would even be involved in arresting somebody that did something so inconsequential,” he said. “We have to trust our law enforcement to have some restraint in what they do.”

Kavanagh also noted that under Arizona law prosecutors and judges are free to convert any Class 6 felony to a misdemeanor if they believe the facts warrant it.

The measure now needs approval of the full Senate.