A “ F--- Biden” flag flying prominently from a city resident’s house that the city sought to remove will remain up.
An agreement between Brandon Adams and the city of Kokomo was reached late last week, according to court documents filed in federal court. Per the agreement, neither side is admitting to any wrongdoing, but the city can’t take any “further action against Mr. Adams relating to the flag on his property …”
In addition, the agreement states that due to the United States Supreme Court’s decision in Cohen v. California, the city also “lacks the power” to take any legal action against Adams or any other person flying a “ F--- Biden and F--- you for voting for him” flag and that the First and 14th amendments to the U.S. Constitution protects anyone from flying such a flag as long as there’s no “intent to incite disobedience or disruption.”
In Cohen v. California, the nation’s highest court ruled the arrest of Paul Robert Cohen in 1968 in California for disturbing the peace by wearing a “ F--- the Draft” jacket was a violation of his First Amendment rights.
In October, WISH TV reported that there were five other similar flags or signs being publicly displayed in the city and all but one had been removed.
As a result of the agreement, Adams’ lawsuit against the city will be dismissed with prejudice, meaning he can’t sue the city over the same issue again in the U.S. District Court Southern District of Indiana. As of Tuesday morning, the agreement and dismissal have yet to be signed off on by U.S. District Judge James Patrick Hanlon, though that is likely to happen in the near future.
In an emailed statement, Adams’ attorney, Jay Meisenhelder, said his client sees the agreement as a “complete vindication” of his right to fly the flag.
“Mr. Adams considers this result to be a complete vindication of his right to display the flag, as well as clear recognition by the City that political speech — even though it may be considered ‘offensive’ by some — cannot be censored by the government unless it presents a clear and present danger to public safety,” Meisenhelder said in an email.
In a brief interview with the Tribune on Tuesday, Adams said he was “happy” with the agreement. Notably, the agreement does not include monetary compensation outside of the city paying for Adams’ attorney fees.
“It was never about taking their money or anything crazy like that,” Adams said. “I just wanted to be left alone. It was well within my rights … I wanted to make sure anyone else going forward could express their political beliefs without fear of their neighbors using the City Council or whatever to bully them around.”
Adams filed the lawsuit in September after the city sent him a letter and an abatement notice claiming that his “ F--- Biden” flag was in violation of the city’s zoning and nuisance ordinances. Adams claimed his First Amendment rights were being violated as a result of the city trying to get him to remove the flag and that the flag was protected political speech.
Adams put up a flag on or around Sept. 9 on the side of his home in protest of President Joe Biden’s directive to the Occupational Safety and Health Administration to write a rule requiring employers with at least 100 workers mandate their employees get vaccinated against COVID-19 or produce weekly test results showing they are virus-free. Adams said Tuesday that he will keep the flag up unless Biden reverses course on his proposed mandate.
Shortly after putting the flag up, the complaint alleges that Bob Cameron, a former city councilman and neighbor to Adams, visited Adams’ home and told Adams’ girlfriend that the flag must be removed, saying that, as a former city councilman, he “knew the law.”
Around Sept. 16, Adams received the formal abatement notice from Mark Miller, the city building inspector and code enforcement officer, stating that the flag was in violation of the city’s laws and contained the comment “children and parents visiting the Seiberling Mansion observed the flag and we cannot allow the profanity to be publicly displayed,” according to Adams’ initial complaint.
Miller cited Kokomo Code of Ordinances 99.02, where it defines and lists various nuisances, according to the complaint. The section states that no owner or occupant of any real or personal property shall “permit a nuisance to remain on such property.” The ordinance then defines said nuisances, including “structures defaced with paint, graffiti, or wording,” which is what Miller’s abatement notice to Adams cited, according to the complaint.
The notice also included that if Adams were not to remove the sign by Sept. 25, he could be fined between $100 to $1,000 per day for the violation and that the city would eventually remove the flag themselves, with Adams paying the costs for that, according to the complaint.
Adams filed charges against Miller; Greg Sheline, executive director of the City of Kokomo-Howard County Plan Commission; Kokomo Mayor Tyler Moore; all three of the Howard County Commissioners; the city; the county and Cameron. However, charges against the commissioners, county and Cameron were later voluntarily dismissed.
In response to Adams’ claims, the city sought to dismiss the lawsuit on grounds that Adams failed to state a claim and an actual deprivation of rights, arguing in a brief filed in November that Adams alleged only an attempted or potential future deprivation and thus, the lawsuit should be dismissed.
“If Adams is forced to remove his flag … he will be irreparably harmed in that he will be deprived of the opportunity to participate in the public debate,” the brief states. “The specific allegations and reasonable inferences drawn from the statements in Adams’ Complaint show that Adams has not taken down his flag and has not been deprived of the opportunity to participate in the public debate.”
An email seeking comment from attorney Liberty Roberts of the law firm Church Church Hittle + Antrim, who was representing Miller, Sherline, Moore and the city, was not returned as of Tuesday afternoon.
