One homeowner in Colorado has won the right to fly the Gadsden Flag but another in Arizona continues the battle.

Thornton, Colorado resident Eric Smith has won his battle with the East York Villas Homeowners Association and will be allowed to fly the Gadsden Flag without harassment.  To the southwest in Laveen, Arizona, Andy McDonel is having a much tougher time and has enlisted the help of the ACLU. 

Both men fought for their right to display the bright yellow Gadsden Flag bearing a rattlesnake and the phrase “Don’t Tread On Me.”  The flag is steeped in history going back to the founding of this nation and has been used by the United States Navy and United States Marine Corps over the past 235 years.

Their homeowners associations (HOAs) however saw the flags as political speech and as symbols of the Tea Party.  The groups sent Smith and McDonel letters demanding the flags be taken down.

This past week Smith learned that his HOA would no longer press him on the issue and he would be able to proudly fly the flag.  Lawyer Elina Hindley who represented the HOA sent a letter stating, “Please be advised, we have discussed this situation with the board of directors and the board has decided to allow the Tea Party flag to remain displayed on your property. Thus, you may disregard the request contained in the original letter.”

It appears McDonel’s disagreement will be a much longer and drawn out process.  The Avalon Village HOA told McDonel that his flag must come down and classified it as “debris” under the “garbage” section of the covenants.

In a letter from their lawyer last week, the association maintains that the Gadsden Flag does not fall under Arizona’s Community Association Flag Display Statute, a law enacted to ensure residents within covenant controlled communities could fly flags. 

McDonel has refused to comply and his case has received a great deal of publicity from not only local Arizona news outlets but FOX News and the New York Times as well.  The American Civil Liberties Union (ACLU) has sided with McDonel and sent a letter to the association on McDonel’s behalf. 

The ACLU argues that the Gadsden Flag’s military history affords it protection under Arizona law.  They point out that a previous disagreement between a homeowner and an HOA over the Gadsden Flag in 2003 was the driving force behind the law.

McDonel is chronicling his fight with the oppressive HOA on a blog and has vowed to keep the fight going.  Today he told the Times, “It’s a patriotic gesture.  It’s a historic military flag. It represents the founding fathers. It shows this nation was born out of an idea.”

I find it interesting how on one hand the left is dismissive of the Tea Party, 9/12′ers or individuals that they think might be a bit too much on the side of the United States Constitution.  On the other hand however there is obviously a sense of fear as episodes like this show.  They worry about a possible revolution - and maybe they should indeed be scared.

Update, 9/2/10, 5:55am – Mr. McDonel is now being represented by Dessaules Law Group in his battle against his HOA.  Attorney Jonathan Dessaules has submitted a letter to the representative of the Avalon Village Community Association taking them to task for pressing  a case against McDonel for flying the Gadsden Flag. 

Most eloquently, the closing of the letter states:

The right to fly an American or military flag of their choosing out of deep respect for those who risk their lives for freedom is not among those rights to be surrendered for the sake of neatly manicured lawns and other benefits an association offers.

Head on over to McDonel’s blog for all the latest in his battle. 

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