Nevada law in NRS 201.290 prohibits the tearing down or defiling of the United States flag or the Nevada state flag. Penalties consist of high fines and even jail.  But an experienced Las Vegas defense attorney may be able to get these cases dismissed on “Free Speech” or other grounds.

This article summarizes the law for the Nevada offense of flag desecration.  Scroll down to learn more including possible defense strategies and punishments in Las Vegas.

Definition

The legal definition of “desecration of a flag” is extremely confusing and convoluted.  What’s more, Nevada’s flag desecration laws are arguably unconstitutional.  This may be why prosecutors hardly ever press charges for this crime in Las Vegas.

NRS 201.290 pertains only to the United States flag and the Nevada state flag.  According to the statute, the following acts may qualify as unlawful flag desecration:

• Displaying or advertising a flag that’s been altered in any way that tends to defame the flag
• Publicly or willfully mutilating, trampling on or tearing down a flag
• Willfully and maliciously removing a flag owned by another person
• Defaming or “speaking evilly” of a flag
• Defacing or defiling a flag

Of all of these, the acts most likely to incur an arrest are tearing down another’s flag.  This is because it’s similar to malicious mischief, which outlaws vandalizing another’s property.  But police rarely make arrests for defacing or defaming a flag because prosecutors usually lose these cases on Freedom of Speech grounds.

Flag burning

The language of NRS 201.290 suggests that flag burning is also illegal in Nevada.  However, the United State Supreme Court has ruled that the First Amendment protects flag burning because it’s considered “symbolic speech.”  Therefore, it’s very unlikely police will arrest someone merely for burning a flag.

However, if the flag is burned in such a way that it threatens other people’s property or safety, prosecutors may instead bring charges for malicious mischief, arson, and/or reckless endangerment.  Depending on the extent of the damage the judge may impose very high fines and even prison.

Defenses

Since flag desecration is such a broad crime, the most effective way to fight allegations of it turns wholly on the facts of the case.  The following are potential defenses to defiling a flag in Nevada:

• First Amendment/ freedom of speech:  The U.S. Supreme Court ruled in Texas v. Johnson in 1989 that the First Amendment renders it unconstitutional for a government to prohibit flag desecration.  Therefore a defense attorney would try to show that the defendant’s use of the flag fell safely within the bounds of protected free speech.
• Police misconduct:  Sometimes the judge will throw out a case based purely on a procedural mistake the police made during the investigation.  For example, if law enforcement may have conducted a search without a search warrant to find a defiled flag, the defense attorney can petition to judge to throw out all the evidence obtained from that search including the flag.  If the judge agrees, the D.A. may then drop the case for lack of proof.
• Insufficient evidence:  No judge or jury may convict a defendant of flag desecration unless they believe the prosecutors proved the defendant’s guilt beyond a reasonable doubt.  This is an extremely high standard that may be very hard to meet.  If a defense attorney can convince the judge or jury that the state’s evidence is too unreliable or holey to eliminate reasonable doubt, the defendant should be acquitted.

Penalties

The Las Vegas offense of flag desecration is a misdemeanor in Nevada.  The sentence for a misdemeanor includes a punishment of:

• up to 6 months in jail, and/or
• up to $1,000 in fines

Upon conviction, the defendant is required to wait at least one (1) year before petitioning the court to get the criminal record sealed.  But if the defendant wins an acquittal or the judge dismisses the case, the defendant may petition to seal the record immediately.  Learn more about sealing Nevada criminal records.

Arrested?  Call . . . .

If you’ve been accused of desecrating a flag under NRS 201.290, call Las Vegas criminal defense attorneys.  They can meet with you to discuss whether they may be able to get the case dismissed through negotiations.  And there’s always the option of litigating the case all the way to trial.