A Kokomo man is claiming his First Amendment rights are being violated by the city and county governments for trying to make him remove a flag from his property.

Flag Biden.jpg

Shown is the “ F--- Biden” flag that the city sought to remove and was the focus of a federal lawsuit. The Tribune edited the photo due to the obscenity in the flag.

Brandon Adams, through Indianapolis attorney Jay Meisenhelder, filed a lawsuit in U.S. District Court Southern District of Indiana, alleging a civil rights violation by the city of Kokomo, Howard County and others through "unlawfully depriving him of his right to freedom of speech.”

The lawsuit lists Mark Miller, the city building inspector and code enforcement officer; 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 Bob Cameron, a former city councilman and neighbor of Adams, as defendants.

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 its employees to get vaccinated against COVID-19 or produce weekly test results showing they are virus free.

Shortly after putting the flag up, the complaint alleges that Cameron visited Adams' home and told Adams' girlfriend that the flag must be removed, saying that, as a former city councilman, he “knew the law.”

Adams, according to the complaint, then received a letter on or around Sept. 10 from Sheline stating that the plan commission office had been receiving complaints about the flag and that it must be removed, per the city's zoning ordinance, which allows “political campaign or anti-policy signs” under “Freedom of speech signs” but also prohibits such signs that contain “statements, words, or pictures of an obscene, indecent, or immoral character, such as will offend public morals or decency.”

Around Sept. 16, Adams received a formal abatement notice from Miller 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 the 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 sign themselves, with Adams paying the costs for that, according to the complaint.

Adams’ complaint argues that Article Six, Section 6.34 (E)(p) of the city’s zoning ordinance violates the First Amendment’s protection of speech, and, as such, the city’s actions to remove his political flag under the guise of being a “nuisance” or offending “public morals or decency” is also a violation of the First Amendment.

“If Adams is forced to remove his flag, which he first displayed as a protest against the President's proposed vaccine mandate, at the present time, which public debate and discussion concerning the vaccine mandate is at its highest level, he will be irreparably harmed, in that he will be deprived of the opportunity to participate in the public debate at the most crucial time,” the complaint reads.

“The harm to the Plaintiff from the loss of his free speech rights during the vaccine debate far outweighs the harm to the Defendants from allowing Adams' flag to remain,” the complaint continues.

The lawsuit levies seven separate counts against the various defendants, alleging “deprivation of rights” violations by Sheline, Miller, Moore, Cameron and the commissioners.

Adams is asking the court to rule that the city and county no longer be able to enforce its zoning and nuisance ordinances against Adams’ flag or any other similar political speech, a jury trial and for the defendants to pay damages.

According to the case docket, both parties have agreed to “maintain the status quo,” meaning Adams’ flag will be allowed to stay up pending further order from the court.

In a brief interview with the Tribune, Meisenhelder said he believes there’s very strong legal precedent in favor of Adams’ right to have the flag on his property without punishment, citing the famous Supreme Court case Cohen v. California, where the nation's highest court ruled that Paul Robert Cohen’s 1968 arrest in California for disturbing the peace by wearing a “F--- the Draft” jacket was a violation of his First Amendment rights.

“We think we have a strong case,” Meisenhelder said.

When reached for comment, county attorney Alan Wilson said the county has “no comment” other than it has “not had a chance to fully investigate the claim or the facts” of the case.

A Monday afternoon email seeking comment from city attorney T.J. Rethlake received no response.

Tyler Juranovich can be reached at 765-454-8577, by email at tyler.juranovich@kokomotribune.com or on Twitter at @tylerjuranovich.

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