Constitutionally dubious charges against a man who allegedly insulted and desecrated an American flag are in the hands of a Pennsylvania district attorney, who hasn’t said if he intends to prosecute or drop the case.

Joshua Brubaker faces two charges that jointly carry up to three years in jail and a fine of up to $7,000 for hanging an upside-down flag decorated with the letters “AIM” outside his Blair County home.

Brubaker is a supporter of the American Indian Movement and was upset about the possible sale of South Dakota land where the 1890 Wounded Knee Massacre occurred.

Allegheny Township Police Assistant Chief L.J. Berg was repulsed by the protest and seized the flag as evidence May 12. He charged Brubaker with “desecration of flag,” a third-degree misdemeanor, and “insults to national or commonwealth flag,” a second-degree misdemeanor.

“I was offended by it when I first saw it,” Berg told WPXI-TV. “Too many people have made too many sacrifices to protect the flag and to have this happen in my community, I’m not happy with that.”

Town police are not giving more interviews as the case heads to court. The charges are out of their hands, a department staffer says.

Blair County District Attorney Richard Consiglio, the prosecutor handling the case, hasn't advertised his point of view.

Consiglio's office repeatedly declined to make him available for an interview.

A preliminary court hearing is scheduled for June 3. Consiglio can drop the charges at the hearing, but it’s unclear if he plans to do so.

Fortunately for Brubaker, the state laws he’s accused of violating are “pretty clearly unconstitutional,” according to Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania.

In 1989 the U.S. Supreme Court reversed the conviction of a Texas man who torched a U.S. flag in protest, finding state law could not ban First Amendment-protected expressive conduct, and in 1990 the court struck down a federal law against flag desecration.

“Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering,” Justice William J. Brennan wrote in the 1990 majority decision.

In Pennsylvania, however, “the laws remain on the books and every once in a while you get a misguided police officer or district attorney who decides he or she is going to use them because they’re offended,” Walczak says.

Brubaker is being represented pro bono by a lawyer affiliated with the state ACLU, which intends to file a federal lawsuit against the statutes soon after the pending charges are dismissed, Walczak says.

In addition to the statutes, the officers who enforced them may find themselves in hot water.

University of California at Los Angeles law professor Eugene Volokh wrote on his popular Washington Post blog that because the constitutionality of flag desecration is so clear, police officers involved “wouldn’t have qualified immunity in any lawsuit that Brubaker might bring against them.”

Volokh tells U.S. News the officers may be liable personally for damages and attorney fees.

“The fact that they went on his porch without a warrant and seized his flag because they were offended is sufficient to make them potentially liable in a civil rights action,” Walczak says.

In the unlikely event that Brubaker’s case reaches the Supreme Court, Volokh doubts justices would reverse the court's older rulings, which were decided in 5-4 votes. Justices Antonin Scalia and Anthony Kennedy were in the majority in those cases, he notes.

“Indeed, the decision might be unanimous, if it comes to the court; but I don’t see why it would, given that lower courts will likely faithfully follow Texas v. Johnson and U.S. v. Eichman,” Volokh says.

There are several Allegheny Townships in Pennsylvania and a police employee in a different town with the same name says furious civil libertarians have been haranguing the department with phone calls.