Although Utah's flag desecration law has all but been deemed unconstitutional by the U.S. Supreme Court, only the Utah Legislature can "purge" the law from the books, according to the 10th Circuit Court of Appeals.

In a ruling issued Thursday evening, the Denver-based appellate court found that a Salt Lake County man, who was charged with a misdemeanor after burning a smiley face onto a U.S. flag, lacked standing to bring his case before the court because Salt Lake County District Attorney David Yocom's office ultimately dismissed the charge.

But in their decision, Judges Michael McConnell, Monroe McKay and Timothy Tymkovich gave a nod to the Utah Legislature's ability to remove laws that have been deemed unconstitutional by the nation's highest court.

"There is no procedure in American law for courts or other agencies of government — other than the legislature itself — to purge from the statute books laws that conflict with the Constitution as interpreted by the courts," the opinion states.

The judges, however, did note that the weight of precedent by U.S. Supreme Court rulings generally protects citizens from being prosecuted under unconstitutional laws.

In October 2002, frustrated with the justice system and "bored," Kris Winsness burned the image of a "smiley face" onto a U.S. flag and hung it on his garage door.

Offended neighbors called the Salt Lake County Sheriff's Office to complain and a deputy took the flag as evidence. Later, Winsness was charged by Yocom's office with violating Utah's flag desecration law, a class B misdemeanor.

County prosecutors dismissed the charge against Winsness without prejudice, allowing them to refile the charge at any time. However, in an affidavit, Yocom assured that his office would not prosecute anyone under the statute.

During oral arguments held at the University of Utah last August, Salt Lake attorney Brian Barnard argued that Winsness was still at risk of being charged under the statute again, even after Yocom leaves office as DA.

In their ruling Thursday, the judges concluded that such a threat was not a realistic one, pointing out that there is a "deterrent effect of damages actions against executive officials who violate clearly established constitutional rights."

To also deem Utah's statute unconstitutional would simply be "redundant" in light of the U.S. Supreme Court's 1989 ruling in Texas vs. Johnson, which struck down Texas' flag desecration law, they said.

The judges also noted that Winsness had a right to sue for monetary damages, but that Winsness did not ask for money, but rather to repeal the law.

A second plaintiff, Ken Larsen, claimed he feared prosecution for writing on replicas of the Utah state flag while briefly running as a candidate for governor. The judges ruled Larsen had even less standing that Winsness because Larsen had never been charged, only feared being charged.

The ruling upholds a lower federal court ruling that dismissed the suit.

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E-mail: gfattah@desnews.com