Holmes v. Wallace
407 F. Supp. 493 (1976)
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Rule of Law:
36 U.S.C. § 175(c), part of the Federal Flag Code, is merely declaratory or advisory, not proscriptive, and therefore does not create a private right of action or impose sanctions for its violation, nor can it serve as the basis for a deprivation of rights claim under 42 U.S.C. §§ 1983 and 1985.
Facts:
- The flag of the former Confederate States of America was displayed immediately below the State of Alabama flag on a halyard atop the Alabama State Capitol in Montgomery, Alabama.
- The United States flag was displayed elsewhere on the Capitol grounds.
- The United States flag was displayed at an elevation lower than the Confederate flag on the Capitol dome.
- Plaintiff alleged that this flag display violated 36 U.S.C. § 175(c) and his rights under the Thirteenth and Fourteenth Amendments to the United States Constitution, actionable under 42 U.S.C. §§ 1983 and 1985.
Procedural Posture:
- Plaintiff filed an action in the United States District Court for the Middle District of Alabama, alleging violations of 36 U.S.C. § 175, the Thirteenth and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. §§ 1983 and 1985.
- Defendants filed a motion to dismiss on November 18, 1975, which was amended on January 7, 1976.
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Issue:
Does 36 U.S.C. § 175(c) create a private right of action for individuals to challenge the display of flags, or is it merely an advisory code without legal sanctions, thereby precluding claims under 42 U.S.C. §§ 1983 and 1985?
Opinions:
Majority - VARNER, District Judge
No, 36 U.S.C. § 175(c) does not create a private right of action or proscribe conduct in a way that allows for legal challenges to the alleged flag display under 42 U.S.C. §§ 1983 and 1985. The court found that §§ 173-178 of Title 36, including § 175(c), are "declaratory or advisory" and not intended to proscribe conduct. This conclusion is based on the language of § 173, which states the code is for the "use of such civilians," and the recurrent use of the word "should" rather than "shall" in many provisions. While § 175(c) itself uses "shall" and refers to conduct being made "unlawful," the court emphasized the absence of any explicit sanctions or enforcement mechanisms for its violation, distinguishing it from other federal statutes where penalties are explicitly provided (e.g., 18 U.S.C. § 700(a)). The court cited State of Delaware ex rel. Trader v. Hodsdon for its analysis of the flag code's advisory nature and the lack of sanctions. Despite some legislative history for the 1953 amendment to § 175(c) suggesting a punitive intent, Congress "did not and has never provided any explicit remedy for violations." The court also rejected Plaintiff's claims under 42 U.S.C. §§ 1983 and 1985 because § 175(c) does not create any "rights, privileges, or immunities secured by the Constitution and laws" for private individuals. The Plaintiff's alleged "embarrassment and humiliation" were deemed insufficient for § 1983 relief without an invasion of a recognized right to liberty or property. Cases where Confederate flag displays were enjoined (e.g., Smith v. St. Tammary Parish School Board) were distinguished as occurring in the context of dismantling segregated school systems to redress other substantive rights, not as independent causes of action based solely on flag display.
Analysis:
This case establishes that federal statutes, even those using seemingly mandatory language, may be deemed advisory if Congress does not provide explicit sanctions or a clear intent to create a private right of action. It underscores the principle that not every perceived violation of a federal 'code' is actionable in federal court, particularly under civil rights statutes like § 1983, which require a deprivation of a recognized constitutional or statutory right. This precedent limits avenues for private individuals to challenge ceremonial or symbolic government actions that do not infringe upon substantive rights, reinforcing the judiciary's deference to legislative intent regarding enforceability.
