LINCOLN — The Nebraska Supreme Court has been asked to decide whether a Lincoln man’s misdemeanor convictions should stand for taking a flag on a flagpole into the Nebraska Capitol in 2022 and refusing to leave when asked to take the pole out.
Deputy Lancaster County Public Defender Kelsey Helget asked the state’s highest court Thursday to reverse James Kalita’s convictions for second-degree trespassing for defying the order to leave and failure to obey a lawful order.
“It’s clear from the plain language ... that he did not violate this rule by possessing a flag on a flagpole,” she argued.
Helget said the Nebraska State Patrol regulation referred to when asking him to take the flagpole out, labeled “signs,” regulates the display of signs. It’s not a categorical ban on items listed within it, like flagpoles.
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Justice Jonathan Papik said the rule refers to signs, posters, placards and banners.
“Does a flag fall within those categories of items?” he asked.
Helget argued it did not, in part because traditional flags, which are allowed in the Capitol, are larger than the 11-by-7-inch limit on signs in the rule.
To which Chief Justice Mike Heavican jumped in: “Are we talking about the sign here or are we talking about the pole?”
Helget said at trial that the Nebraska state trooper suggested flagpoles were banned but then contradicted himself, saying if a flag had been attached to the tip of a rifle — the rifle essentially being used as a flagpole — there technically would be nothing wrong with that.
She acknowledged that Kalita wasn’t precluded from having the flag in the Capitol, just the flagpole. But, she argued, the way to properly display a flag is on a flagpole.
On Sept. 19, 2022, Kalita walked into the Nebraska Capitol with a Marcus Garvey or Pan-African flag (a marker of freedom, pride and the political power of Black Americans) on a 6-foot flagpole.
When a Capitol Security staff member told him the flagpole was prohibited in the building, Kalita refused to take it outside. A State Patrol trooper and patrol captain told him the same, explaining that if he wouldn’t remove it, he could be cited.
Still, Kalita refused.
He ultimately was charged with the misdemeanors and, last year, after a jury found him guilty, he was fined $300.
Kalita appealed. First to the Lancaster County District Court, which affirmed the decision, and then to the Supreme Court.
At oral arguments Thursday, Solicitor General Eric Hamilton focused on the fact that Kalita was convicted of trespassing and failure to obey a lawful order.
“He was put on notice of the fact that he was trespassing orally by three different members of Capitol Security staff. That is enough to affirm the convictions,” he said.
Hamilton said there was nothing preventing the State Patrol from deeming an object unsafe and ordering its removal from the Capitol.
Justice Jeffrey Funke asked if the State Patrol could prevent someone from bringing in a firearm.
“Well, it could,” Hamilton said. “The policy right now is to permit open carry of firearms, but not to permit concealed carry of firearms.”
He said that in 2019 there was an incident in the Capitol involving flagpoles being used to knock down other people’s signs and being used like swords, but there have been no incidents in the building involving firearms.
Hamilton pointed to another rule allowing the State Patrol to limit or prohibit the use of items that may affect safety in the building.
“We think that the two patrol troopers’ conduct falls well within that rule because they told Mr. Kalita that his flagpole was a safety risk, gave him an opportunity to take the flagpole out of the Capitol and come back inside the building without it,” Hamilton said.
Justice Lindsey Miller-Lerman asked if the pole, in and of itself, constituted “speech” in terms of freedom of speech.
Hamilton said it was the flag that expresses the message, not the pole.
“He could have brought in the flag, held it over his hands, he could have draped it over his body, which is what he did during his sentencing hearing. The pole is not part of the expression,” he said.
The Supreme Court took the case under advisement.
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