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Federal Judge Rules Against New Rochelle Veterans, Says City Has Right to Label Gadsden Flag a Divisive "Tea Party" Flag

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Federal Judge Rules Against New Rochelle Veterans, Says City Has Right to Label Gadsden Flag a Divisive "Tea Party" Flag

December 23, 2014 - 19:57
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GadsenFlag Armory 729

WHITE PLAINS, NY -- A federal judge upheld a motion to dismiss filed by the City of New Rochelle against the United Veterans Memorial & Patriotic Association of New Rochelle.

Judge Seibel Gadsden Flag Opinion

Federal District Court Judge Cathy Seibel ruled that the City of New Rochelle could consider the Gadsden flag, the yellow "Don't Tread on Me" flag, as a symbol of the "Tea Party" and thus "divisive".

The City was pleased with the outcome.

"We are grateful that this matter has been settled favorably," said City spokesperson Kathy Gilwit.

The United Veterans group was represented by The Thomas More Law Center which has said it will appeal the decision. A notice of appeal will be filed within 21 days with the District Court in White Plains, NY and the District court will refer the case to the Second Circuit Court of Appeals in Manhattan.

The Thomas More Law Center issued the following statement:

ANN ARBOR, MI – Yesterday, Federal District Court Judge Cathy Seibel of the
Southern District of New York issued an opinion refusing to allow the United Veterans Memorial and Patriotic Association of the City of New Rochelle (“United Veterans”) to fly a “Don’t Tread on Me “ patriotic flag, commonly referred to as the Gadsden Flag, on government property.

In her opinion, the judge held that the City of New Rochelle could rightfully consider the Gadsden flag as a symbol of the “Tea Party” and believe it to be “divisive.” Ironically, the Naval Academy football team used the Gadsden flag design for their team uniforms in the recent Army-Navy football game held on December 13, 2014 in Baltimore.

The lawsuit on behalf of the United Veterans was brought by the Thomas More Law
Center, a national public interest law firm based in Ann Arbor, Michigan.
The United Veterans are a charitable group led by Peter Parente, a Marine combat
veteran. The United Veterans conduct numerous civic works in the City of New Rochelle. As part of their duties pursuant to the City Charter, the United Veterans exclusively take care of the property maintenance and the display of flags at the New Rochelle Armory.

Since 1997, the United Veterans has ensured the proper display of American and Patriotic flags on the property. The New Rochelle Armory is open to the public and treated as a public park. The United Veterans purchase and display the flags at the armory, replace the flags when they become tattered and make sure there is always a light shining on the American Flag.

The City of New Rochelle has had no problem with the United Veterans’ care of the New Rochelle Armory, until the United Veterans raised a Gadsden Flag on the flag pole below the American flag in March of 2013. The Gadsden Flag is a yellow flag featuring a coiled rattlesnake with the words “Don’t Tread On Me” below the snake. The Gadsden Flag dates back to 1775 and has great historical significance. The flag was named after Christopher Gadsden, the commander-in-chief of the Continental Navy and was a symbol of strength and hope during the American Revolution. The United Veterans wished to fly the Patriotic Flag at the New Rochelle Armory to honor and represent our Nation’s proud history and strength, as well as honor the sacrifices of our Navy and Marine Corps veterans who have served under the Gadsden flag.

In a blatant act of viewpoint discrimination, the City of New Rochelle removed and confiscated the United Veterans’ flag. Prior to this removal of the flag, the City of New Rochelle never previously intervened in any aspect of what the United Veterans displayed or how the United Veterans displayed flags on the armory flagpole.

The United Veterans brought a lawsuit asserting claims for the violation of their free speech rights, a violation of due process for the illegal confiscation of their flag, and a violation of the open meetings act as members of the City of New Rochelle council met in secret and illegally decided to confiscate the flag. Months after the suit was filed, the attorneys for the City of New Rochelle returned the United Veterans’ Gadsden flag in a wrinkled state.

Yesterday, a Judge dismissed the United Veterans’ first amendment claim and refused to render a decision on the open meetings act claim. In her decision, the Court stated, “The City has a valid interest in expressing the messages that it chooses through its flagpole, and may decide to avoid speech that it believes will be perceived by some of its constituents as divisive.” The Court cited case law which disallowed the erection of the Confederate flag on government property in support for its conclusion.

Richard Thompson, President and Chief Counsel at the Thomas More Law Center commented, “I’m astonished and saddened that the court would give any credibility to New Rochelle’s legal argument that the Gadsden Flag is a symbol of the Tea Party and that they perceived it to be “divisive,” especially when just a week before her opinion, the U.S. Naval Academy proudly displayed their new football uniforms and sports paraphernalia containing the Gadsden Flag design.”

Erin Mersino, Senior Trial Counsel at the Thomas More Law Center responds to the Court’s decision, “Unfortunately the Court ignored the central facts and law in this case. The City expressly opened the forum to the United Veterans. The United Veterans have been displaying flags at the New Rochelle Armory for the last sixteen plus years. The City never previously had any issue with accepting private speech from the United Veterans in the form of flags until they flew a Gadsden flag.

Therefore banning the Gadsden Flag at the armory is nothing short of illegal viewpoint discrimination for which the First Amendment has no patience.

Respectfully, the Court erred and an appeal will follow.”

The Thomas More Law Center defends and promotes America’s Judeo-Christian heritage and moral values, including the religious freedom of Christians, time-honored family values, and the sanctity of human life. It supports a strong national defense and an independent and sovereign United States of America. The Law Center accomplishes its mission through litigation, education, and related activities. It does not charge for its services. The Law Center is supported by contributions from individuals, corporations and foundations, and is recognized by the IRS as a section 501(c)(3) organization. You may reach the Thomas More Law Center at (734) 827-2001 or visit our website at www.thomasmore.org.