It began with an Executive Order and ended with scorched bricks in Lafayette Park. Now, a federal judge has ruled that while fire safety regulations technically apply to a protester’s blaze, the government must answer questions about whether the charges were politically motivated.
On Tuesday, Chief Judge James E. Boasberg of the U.S. District Court for the District of Columbia issued a split decision in United States v. Carey. While the court rejected the defendant’s claim that his conduct was legal under park-specific rules, it granted him the opportunity to prove his “vindictive prosecution” defense, citing body camera footage suggesting police were acting directly on orders from the White House.
The Incident: Accelerants and Executive Orders
The case stems from an August 2025 incident involving defendant Jan Carey. Following an Executive Order (No. 14341) issued by President Donald Trump directing the Department of Justice to prosecute flag burning “to the fullest extent permissible,” Carey marched to the park directly across from the White House.
According to court documents, Carey, a 20-year Army veteran, doused an American flag in isopropyl alcohol, placed it on a brick path, and ignited it while declaring the President an “illegal fascist.”
The prosecution alleges Carey created a public safety hazard. Evidence cited in the opinion details the presence of:
- One bottle of isopropyl alcohol.
- One pressurized canister of bug spray used as an accelerant.
- A fire lit without a containment receptacle (such as a metal can).
- Scorched bricks left on the path.
The Legal Battle: General vs. Specific Rules
Carey’s defense first attempted to dismiss the charges by arguing a technicality regarding federal regulations. They claimed that 36 C.F.R. § 7.96, which governs demonstrations in D.C. parks specifically, superseded the general National Park Service fire regulations (36 C.F.R. § 2.13) under which Carey was charged.
Judge Boasberg rejected this “field preemption” argument. The court noted that while D.C. rules allow for “temporary structures” in demonstrations, they do not grant a blanket immunity to set uncontained fires that damage federal property.
“You cannot falsely shout fire in a crowded theater,” Boasberg wrote. “What about lighting a fire in a crowded park?”
The Vindictive Prosecution Claim
The court’s tone shifted significantly regarding the motive behind the arrest. The defense argued that Carey was targeted not for the fire, but for the speech, in direct retaliation to the President’s Executive Order.
The judge found this argument “plausible” enough to warrant further inquiry, pointing to specific exchanges captured on officer body cameras:
- Officer Wong: “So the President just today signed an executive order [that] says we’re arresting him. We got that going for us.”
- Officer Pacheco: Noted that command staff was consulting with Assistant U.S. Attorneys specifically because “Trump signed an executive order for the flag stuff.”
The court noted that while the government had a legitimate reason to charge Carey (the dangerous fire involving bug spray and alcohol), the “strong possibility” exists that prosecutors would not have pursued the case but for the protected speech.
What Happens Next
The Motion to Dismiss based on the regulations was denied. However, the claim of vindictive prosecution remains active. Judge Boasberg has ordered a status hearing to determine the next steps, which will likely involve discovery regarding the Justice Department’s communications about the Executive Order.
The ruling establishes a high bar for the defense: to win, Carey must eventually prove that he would not have been prosecuted if he had lit a similar fire without the political speech.
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