Local column: If it isn’t broke, don’t fix it…

Hopefully our city attorney is being overly cautious on some of Idaho Falls’ legal issues and not just winging it through legal minefields, writes Jay Gaskill.

Friday, media reports circulated that city attorney Randy Fife advised Idaho Falls to take down the POW/MIA flag from the city flagpole. A firestorm followed. After giving the matter consideration, Mayor Casper chose not to take his advice. This week, she explained to the city council that Mr. Fife had raised “fairness” issues and concerns over possible lawsuits - as if the city flagpole is to be treated as a public forum. Mayor Casper is now to develop a formal flag policy, a process to proceed over the next several months.

For now, the POW/MIA flag remains on the City Hall flagpole, next to Old Glory. But will it remain? There was no reason to “fix” city flag display practice in the first place. This was a self-inflicted policy kerfuffle set off by the City Attorney - no realistic threat of litigation – nuisance lawsuits aside.

US and Idaho flag laws are bright-line clear. Neither Title 4 of the United States Code (4 U.S.C. § 1) nor ID Code § 67-2303 forbids the practice of displaying a flag honoring our veterans next to Old Glory. In point of fact, the MIA flag is flying next to Old Glory across the state and in cities across the US. No one has succeeded in a legal claim that an American city is forbidden to fly the MIA on a city flag pole. In my opinion, no lawsuit to force the city of Idaho Falls to take down the MIA flag. whether based on the first amendment or some other basis, can succeed because flagpoles are not billboards. The issue is political, not legal in nature. In the unlikely scenario that such a lawsuit is ever filed, the duty of the city attorney would be to vigorously defend the city’s decision to keep the MIA flag. Period.

I served as an appointed lawyer myself. As county Public Defender I reported to five elected county officials, and 100 staff attorneys reported to me. For those of us who serve elected officials, a cardinal rule applies: We do not use our positions to advance political issues. I have no doubt that Randall Fife is an experienced and intelligent lawyer. But his actions in the flag case are troubling because they raise questions in my mind about judgement. I’ve hired countless lawyers over three decades. Relevant legal expertise and an aptitude for litigation were minimal baseline requirements, but common sense and judgment were essential.

As it happens, the road ahead for the city attorney is getting tricky. IFPD is employing drones to assist in accident and crime scene investigations — this is a good thing. Law enforcement needs every tool available. But drones are regulated by federal 4th amendment law and Section 21-213 of the Idaho Code. If our city attorney’s advice to police is overly restrictive, law enforcement will be hampered. If the advice is overly permissive, other problems will arise. Legal surveillance issues are not easy for any small law office to navigate. And sound judgment is essential.

In my old department, we had a staff of six 4th Amendment Search and Seizure specialists. My advice to our city attorney: The wise lawyer does not wing it through this sort of legal minefield.


Jay Gaskill is a recovering lawyer who escaped urban California to return his roots. He and his wife, Robyn, live in their former home town, Idaho Falls.


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