Cape Girardeau police officer ordered to pay fees in flag lawsuit

Sunday, March 3, 2013

A federal judge ordered Cape Girardeau police officer Matthew Peters and the state of Missouri to pay more than $62,000 in attorneys' fees and costs in connection to an arrest he made in 2009 for flag desecration.

U.S. District Judge Carol E. Jackson rendered her written opinion Thursday: a mandate for Peters and the state to pay "reasonable attorneys' fees" the American Civil Liberties Union said it is owed. The ACLU brought the case in 2010 on behalf of Frank L. Snider III, who slashed a United States flag in front of his Cape Girardeau home the previous year. He was charged with violating Missouri's flag-desecration statute.

"That's a pretty good chunk of change, isn't it?" said Al Spradling III, a lawyer and former mayor who represented the city. "But once we knew they got the judgment that they were going to get the attorneys' fees. It was just a matter of how much."

Snider filed suit against the city of Cape Girardeau, Cape Girardeau County Prosecuting Attorney Morley Swingle and Peters. Snider sought damages for alleged violations of his constitutional rights, a declaration that the state statute was unconstitutional and a permanent injunction barring its enforcement. He asked for declaratory and injunctive relief with respect to the Cape Girardeau city flag-desecration ordinance.

Peters could not be reached Friday for comment.

In a series of orders, the court granted Snider summary judgment on his claim that the statute was unconstitutional, entered a permanent injunction barring its future enforcement, dismissed Snider's claims against Swingle, granted a summary judgment in favor of the city and granted a summary judgment against Peters.

Jackson in December awarded Snider $7,000; $1,000 for each hour he was incarcerated.

In the latest order, the court cited the 8th District Court of Appeals in saying a public officer has an obligation to not enforce unconstitutional laws. Peters' contesting the lawsuit made him liable for the fees, according to federal law.

Snider was represented by ACLU lawyers Anthony Rothert, legal director of the ACLU's eastern district, and Grant Doty. Rothert, according to court documents, is to be paid $300 an hour and Doty is to receive $225 per hour. Rothert seeks compensation for 143.5 hours, and Doty expended 84.8 hours on the case.

Spradling objected to using the prevailing rate -- as determined by the prevailing rate in St. Louis -- arguing that it is too high for a community the size of Cape Girardeau. Judge Stephen Limbaugh ruled in a recent case that Cape Girardeau rates could be applied and cut the rate from $425 an hour to about $250.

"But the judge sort of ignored it," Spradling said.

The bill is to be split between the state and Peters, though Spradling said insurance will cover the entire cost. That's why Rothert didn't decry the ruling.

"This wound up being a long case, and so we spent more than 250 hours preparing for the case and this was over two years worth of work," Rothert said.

Rothert noted the city and the state have appealed Jackson's ruling. If the ACLU prevails once more, Rothert said another $30,000 in fees likely will be added.

smoyers@semissourian.com

388-3642

Pertinent address:

555 Independence St., Cape Girardeau, MOthe

Map of pertinent addresses

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