COL Barfoot -Threads Merged

Originally Posted by Longrifle

Link

Spin it any way you want, to me it's not about a flagpole. It's about the flag.

Absolutely. I read about this last night and think it's bullshit. I can't imagine his flag pole being that big of a distraction.

[Section8]

To answer the original posters question: No we do not need another law. We just need the current one removed!

[mdb23]

Originally Posted by Husker19D30

This is what it comes down to for me. There would seem to be a first amendment issue here.

The first amendment states that the govt shall pass no law prohibiting or infringing upon free speech. This is not what is happening here, and is therefore not a first amendment issue.

This gentleman entered into a legally binding civil contract when he purchsed his home and signed on the dotted line with the HOA. It was a choice that he made. If the contract said "no flag poles," then he doesn't have a legal leg to stand on. It's that simple.

I don't like HOAs, which is why I didn't buy a home in a neighborhood that had one.

[mdb23]

Originally Posted by tip001

Absolutely. I read about this last night and think it's bullshit. I can't imagine his flag pole being that big of a distraction.

Right, but if they make an exception in his case, then they are going to have a hard time enforcing the stipulation in other cases.....a legal landmine to say the least. I think the following quote sums it up quite well.

Originally Posted by P38

My HOA has tried to be lenient on some things, but as soon as you allow one person to do their own thing with a flagpole, another thinks that justifies building a brick religious monument in their front yard. Literally, and it was a fricking shrine.

And finally, +10000 on the following:

Originally Posted by P38

I resent people making personal issues 'Patriotic' issues to win their way.

[Section8]

Originally Posted by mdb23

The first amendment states that the govt shall pass no law prohibiting free speech. This is not what is happening here, and is therefore not a first amendment issue.

This gentleman entered into a legally binding civil contract when he purchsed his home and signed on the dotted line with the HOA. It was a choice that he made. If the contract said "no flag poles," then he doesn't have a legal leg to stand on. It's that simple.

I don't like HOAs, which is why I didn't buy a home in a neighborhood that had one.

Originally Posted by mdb23

Right, but if they make an exception in his case, then they are going to have a hard time enforcing the stipulation in other cases.....a legal landmine to say the least.

Fair enough.


So..........how do display a flag without a flag pole?

Lets also keep in mind this:
http://www.senate.gov/reference/reso...df/RL30243.pdf

Last paragraph...

Quote:
Restrictions on Display of the Flag by
Real Estate Associations
The Freedom to Display the American Flag Act of 200556 prohibits a
condominium, cooperative, or real estate management association from adopting or
enforcing any policy or agreement that would restrict or prevent a member of the
association from displaying the flag in accordance with the Federal Flag Code on
residential property to which the member has a separate ownership interest.

Originally Posted by mdb23

Right, but if they make an exception in his case, then they are going to have a hard time enforcing the stipulation in other cases.....a legal landmine to say the least. I think the following quote sums it up quite well.:

That's a good point. I just feel bad because he is a 90 y/o MOH recipient who deserves to display the flag. But you're right.

[mdb23]

Originally Posted by Section8

Lets also keep in mind this:
http://www.senate.gov/reference/reso...df/RL30243.pdf

Last paragraph...

Quote:
Restrictions on Display of the Flag by
Real Estate Associations
The Freedom to Display the American Flag Act of 200556 prohibits a
condominium, cooperative, or real estate management association from adopting or
enforcing any policy or agreement that would restrict or prevent a member of the
association from displaying the flag in accordance with the Federal Flag Code on
residential property to which the member has a separate ownership interest.

They aren't prohibiting him from displaying the flag, merely stating that he cannot have a flagpole in his yard. There are other ways to display the flag.

[Decon]

Originally Posted by Section8

Fair enough.


So..........how do display a flag without a flag pole?

Lets also keep in mind this:
http://www.senate.gov/reference/reso...df/RL30243.pdf

Last paragraph...

Quote:
Restrictions on Display of the Flag by
Real Estate Associations
The Freedom to Display the American Flag Act of 200556 prohibits a
condominium, cooperative, or real estate management association from adopting or
enforcing any policy or agreement that would restrict or prevent a member of the
association from displaying the flag in accordance with the Federal Flag Code on
residential property to which the member has a separate ownership interest.

Freedom to Display the American Flag Act of 2005:
SEC. 4. LIMITATIONS.


Nothing in this Act shall be considered to permit any display or use that is inconsistent with--


(1) any provision of chapter 1 of title 4, United States Code, or any rule or custom pertaining to the proper display or use of the flag of the United States (as established pursuant to such chapter or any otherwise applicable provision of law); or


(2) any reasonable restriction pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the condominium association, cooperative association, or residential real estate management association.

Originally Posted by Longrifle

If burning the flag disrespectfully is considered "freedom of speech," why isn't flying the flag respectfully considered the same and protected as well?

There is an argument for the lawyer if I ever saw one.

"Your honor, I understand the purpose of the HOA and am sure they serve a wonderful purpose. However, we are talking about restricting the first amendment rights of a man who risked his life for our nation."

[mdb23]

Originally Posted by Greenhat

There is an argument for the lawyer if I ever saw one.

"Your honor, I understand the purpose of the HOA and am sure they serve a wonderful purpose. However, we are talking about restricting the first amendment rights of a man who risked his life for our nation."

We are still confusing issues here. The indivudual entered into a private agreeement with the HOA that allows the HOA to pursue legal action against him if he violates the codes and stupulations that he agreed to.

I have a legal right to burn a flag.....which means that the govt cannot come after me (legally) if I do so. However, if I have signed a contract with a HOA stating that I will not burn anything on my property, and then burn a flag in my front yard, the HOA can still take legal action for violation of the agreement. That's not a first amendment violation.

It's no different than accepting a private sector job where there are codes of conduct that I must stipulate to in order to get hired....I may have freedom of speech, but if I choose to hand out pro life literature to every customer that comes through my KMart checkout lane, my employer can still fire can fire me...... Well, I have a right to burn a flag.....but if I enter into a binding agreement that says I won't burn anything on my property, then I can still get sued by the HOA....

In both cases, the govt isn;t taking any action against me...a private entity is based upon authority that I gave them by entering into a binding agreement...

This may suck, but it isn;t a violation of freedom of speech.

[Local]

Originally Posted by Greenhat

There is an argument for the lawyer if I ever saw one.

"Your honor, I understand the purpose of the HOA and am sure they serve a wonderful purpose. However, we are talking about restricting the first amendment rights of a man who risked his life for our nation."

Private contracts != Government action.

While the government may not be able to restrict certain rights... you sure as all hell can sign them away in a private contract.

From initial very tired read it doesn't sound like he has much leg to stand on "legally." On the other hand the HOA is human and if enough media attention gets involved including as someone mentioned a senator they could very quickly vote to amend the agreement and make an exception.

plus most contracts these days have a clause that says "just because we choose not to enforce our rights in this case doesn't mean we give up the option to enforce these rights in other cases / in the future"

aka if you enter into a contract to pay x amount on y date, but end up paying it late on z date 3 times in a row and the lender doesn't call the loan and accelerate / ask for damages... doesn't mean they can't do it on the 4th time, or to your neighbor that does the same thing.

- Local

Originally Posted by mdb23

We are still confusing issues here. The indivudual entered into a private agreeement with the HOA that allows the HOA to pursue legal action against him if he violates the codes and stupulations that he agreed to.

I have a legal right to burn a flag.....which means that the govt cannot come after me (legally) if I do so. However, if I have signed a contract with a HOA stating that I will not burn anything on my property, and then burn a flag in my front yard, the HOA can still take legal action for violation of the agreement. That's not a first amendment violation.

It's no different than accepting a private sector job where there are codes of conduct that I must stipulate to in order to get hired....I may have freedom of speech, but if I choose to hand out pro life literature to every customer that comes through my KMart checkout lane, my employer can still fire can fire me...... Well, I have a right to burn a flag.....but if I enter into a binding agreement that says I won't burn anything on my property, then I can still get sued by the HOA....

In both cases, the govt isn;t taking any action against me...a private entity is based upon authority that I gave them by entering into a binding agreement...

This may suck, but it isn;t a violation of freedom of speech.

I agree in terms of the law. But reality is that a lawyer works emotion as well as the law. And regardless of how the law favors the HOA, this lawsuit will shoot them in the foot if played properly.

Finally, the First Amendment (and the rest of the Bill of Rights) protects our rights from the government... but those rights exist regardless. The concept on which the USA was founded is that those rights are inalienable... so, although the First Amendment protects us from the government infringing on them, the basic concept of inalienable rights means that no one has the right to infringe on those rights (as long as they don't infringe on others).

I think a good lawyer could make the HOA wish they had never denied that application.

[mdb23]

Originally Posted by Greenhat

.....although the First Amendment protects us from the government infringing on them, the basic concept of inalienable rights means that no one has the right to infringe on those rights (as long as they don't infringe on others).

True. However, it is not an infringement if the individual knowingly, and of their own free will, enters into a private agreement which governs their conduct and/or activity.

[Sigi]

Oh for Christ's sake, legal shmegal. The man is a MOH recipient. Give the man his flag pole and move forward.

[Richard]

Personally - I don't understand why the COL and the HOA cannot reach a compromise which would make an exception to honor his MOH status within the community by (1) allowing him to properly fly the flag until he dies and then (2) either remove the pole or (3) move it to an appropriate place of agreed upon honor within the community and place a plaque at its base with the good COLs information on it.

Kinda makes me wonder if there isn't more to the issue and who's pissed whom off around that neighborhood.

Richard's $.02