Fed. Ct. Says Private Individual Can’t Enforce Freedom to Display the American Flag Act of 2005

Louisiana US District Court decision (July 14, 2014):

A Louisiana association member filed a federal court action against his homeowners association challenging the Association’s right to prohibit him from displaying an American flag outside the door to his townhouse. The Association contended that the flag display violates the association’s CC&Rs and when the owner refused to remove the flag, the Association levied fines and placed a lien on his property. In the action, the owner sought: (i) a declaration from the court that the HOA’s actions to prevent him from displaying the flag were invalid under the Freedom to Display the American Flag Act of 2005 (“Act”); (ii) damages; and (iii) attorney fees.

After analyzing the Act and other case decisions, the court concluded that the language of the Act does not have any provisions that create a “private right” or any other enforcement mechanism, remedy or reference to penalties or sanctions to be imposed for violations. The court concluded, “The Act is simply an example of poor draftmanship.”

After determining that the Act’s legislative history is also silent on the issue of whether a private right of action should be available for violations, the Court concluded that it could not imply a private right of action and accordingly, dismissed the action.

See case decision: Costanza v. Tchefuncte Harbour Ass’n, Inc.>