Dispute over flag protest erupts in Wisc. village

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Source: Associated Press

WAUSAU, Wis. – An American flag flown upside down as a protest in a northern Wisconsin village was seized by police before a Fourth of July parade and the businessman who flew it — an Iraq war veteran — claims the officers trespassed and stole his property.

A day after the parade, police returned the flag and the man's protest — over a liquor license — continued.

The American Civil Liberties Union of Wisconsin is considering legal action against the village of Crivitz for violating Vito Congine Jr.'s' First Amendment rights, Executive Director Chris Ahmuty said.

"It is not often that you see something this blatant," Ahmuty said.

In mid-June, Congine, 46, began flying the flag upside down — an accepted way to signal distress — outside the restaurant he wants to open in Crivitz, a village of about 1,000 people some 65 miles north of Green Bay.

He said his distress is likely bankruptcy because the village board refused to grant him a liquor license after he spent nearly $200,000 to buy and remodel a downtown building for an Italian supper club.

Congine's upside-down-flag represents distress to him; to others in town, it represents disrespect of the flag.

Hours before a Fourth of July parade, four police officers went to Congine's property and removed the flag under the advice of Marinette County District Attorney Allen Brey.

Neighbor Steven Klein watched in disbelief.

"I said, 'What are you doing?' Klein said. "They said, 'It is none of your business.'"

The next day, police returned the flag.
...
"It is illegal to cause a disruption," he said.

Read more: http://news.yahoo.com/s/ap/20090710/ap_on_re_us/us_upside_down_flag

[kestrel91316]

1. Well, on the up side, the ensuing very successful 1st Amendment suit

will likely win him enough to retire the debt on the failed restaurant situation.......

[imdjh]

2. It's not enough. It ought to cost the officers something.

Officers making a mistake now and then of some kind is bound to happen- but these guys have been around long enough to know about civil rights, and if they don't then it's their own negligence. They should not be immune from personal liability when the deliberately violate someone's rights.

"My captain told me to do it." is not sufficient except in a split second decision situation. An idiot ought to know better than to do some of the stuff police do as a matter of CULTURE.

[rd_kent]

28. A whole BUNCH of something

And the DA too.

[Mari333]

3. wow no kidding that was wayyy wayy unnnnconstitutional

ensuing suit should win him a lot! Its nobodyyyys businessss what I do with the US flag.

[happyslug]

31. No, all he can get is to recover the FINANCIAL harm he endured.

That is ALL the Courts can do in such situation from a Civil Point of view, and given that limitation what FINANCIAL harm did he incur? The answer is none and thus he will get a $1 nominal judgment.

To get more then $1, he has to show SOME HARM he incurred by the Actions of the Police. The Police trespassed and took his flag (Which is theft) but what harm did the Police cause by entering his property and taking his flag that was NOT resolved when the Police returned the Flag? No Financial harm no Judgment.

Now, Criminal actions are different, but in most states that is up to the local DA (Many states still permit private Criminal Complaints for minor crimes like Trespassing and theft so a private criminal complaint is possible in many states). The problem is when it comes to Criminal actions you not only have to prove that a act occurred by the person doing the act had the INTENT to do the criminal act. Here the Police obtained advice from their lawyer who told them (Implied from the article, NOT expecting stated in the Article) that the Flag was causing a disruption and the Police, as part of their duty to keep the peace, had the legal right to do anything they believe would minimize such disruption to the Peace.

We can dispute the fact that the flag being flown upside down was disruptive, but the law permits the Police to do anything within their power to keep the peace, even telling people to break the law (Provided no death or bodily injury occurs AND the police assume all legal liability. i.e. the Police pay for any harm done by a person directed by a Police Officer to do something that is on its face illegal). The Police had the opinion of their Lawyer that the flag was causing a disruption since it was on the Parade route of an already scheduled parade, and thus the Police can show they had no intent to commit any crime other then what was needed, in their opinion, to keep the peace. Thus the actions of the Police are NOT criminal in nature and the only course of action is a Civil Suit, which the Flag waver can prevail on, but the issue is how much can he recover and in my opinion just a $1 (And he has to pay his own attorney's fees out of that $1, thus would lose money).

People will write letters on this subject to the Police Department and it will male the News but I doubt it will end up to court do to the above.

[paulsby]

33. what kind of moran lawyer

would advise the police it was ok to take the flag? that's astounding to me. you do not even need a law degree to know this was BLATANTLY unconstiutional. this is somethign the supremes have been very clear on, from scalia to ginsburg. if you can burn a flag, you most definitely can fly it upside down.

[happyslug]

34. Fully look at the down side of taking this flag.

As I explained above, no criminal liability based on the Law Enforcement Officers statement that it would cause a "disturbance" and thus the Flag was ONLY taken down to keep the peace. Thus all we have is Civil Liability, i.e. everyone admits taking the flag down was illegal, but what HARM did the owner of the flag incurred do to the Police taking the Flag for no more then two days? The answer is NO financial harm and thus no damages to be awarded by a Court.

My point was any lawyer would have told the Police the above and left it up to the Police to decide what to do. If the Flag owner sues the City, the City will concede taking the flag was illegal but it returned the flag as soon as that was determined and thus any harm was minimal if any harm occurred at all. In most states (I do NOT know what it is in Wisconsin) the statute of Limitations for any action against the Government is Six months or less (In comparison most Criminal actions have a Two year statute of Limitations and Civil Actions against individuals tend to be four years long).

Furthermore so what that a Court rules that the action of the City was Illegal, the City will concede that point from day one. The dispute is going to be over DAMAGES, and they are minimal.

People tend to forget the reason the US Supreme Court first invented the Exclusionary rule was do to the fact that Congress, Federal Prosecutors and Juries where reluctant to hold Federal Law Enforcement Officers personally liable for any and all violations of the Fourth Amendment. If sued Juries were noted for given only the minimal damage awards, which did NOT even covered the cost of hiring a Lawyer to sue the Federal Government to recover the damages. In 1913 the US Supreme Court found enough was enough, the Fourth had to be enforced SOME HOW. Thus the exclusionary rule was adopted, for it was the only way the Federal Court could enforce the Fourth Amendment. Now the Court acknowledged that the Exclusionary rule was a bad rule, but only Congress could adopt a better rule (i.e. punitive damages over and above actual damages and/or the Cost of hiring an attorney to sue the Federal Government for the damages, the Punitive Damages had to be high enough to discourage Federal Officers from violating the Fourth, even if the amount of actual damages were zero).

Between 1913 and the 1950s whenever a state addressed the same issue, the state court adopted a similar rule for the same reason the US Supreme Court did, State legislature refused to pass any law to permit effective enforcement of the Fourth by other means (i.e. State law permitted recovery for actual damages only, no punitive damages, no attorney's costs). Finally in the 1950s the Federal Government extended the Exclusionary rule to all of the States, but again held out the offer to reverse it if and whenever Congress passes some other meaningful enforcement mechanism when the fourth is violated. Congress had not, and neither have any of the states. All prefer criminals to get off then pay when the Police violate the Fourth Amendment.

I bring up the exclusionary rule for it show how an attorney would handle this Flag case. First the attorney would tell the Officer the law, that the Officers can violate the law (Except as to Murder or great bodily harm) if it is to keep the peace. The Officers took the Flag under that law and then returned the Flag once it was determined that taking the Flag was a violation of the First Amendment. Such actions are thus reduced to the issue of the Financial harm incurred by the Flag owner, and like the people whose fourth amendment rights were violated before the adoption of the exclusionary rule, the actual FINANCIAL harm of the violation is minimal or non-existed (i.e. $1 or less). The Flag owner will have to pay his attorney the attorney's fee out of his own money and NOT recover any of it.

Now, sometime the ACLU or other group will pay the cost of bring such an action, but finding such help is difficult given the short statute of limitations AND that fact you have to work while this lawsuit is going on. Most people will just file a protest with their local newspaper (or on the net) and let it go at that.

Now, some of the above depends on where in the country you are living in. About 20 years ago the American Bar association ran an article on the difference between Pittsburgh and Philadelphia when it came to insurance rates. The difference turned on how Juries handled "Pain and Suffering". In almost all legal actions regarding car accidents in Philadelphia had claims of "Pain and Suffering" and when the case went to the Jury, "Pain and Suffering" was part of the rationale for any Judgments for the Plaintiffs against the Insurance agencies. In Pittsburgh it was rare to file for "Pain and Suffering" for even when filed, Pittsburgh Juries rarely gave Judgments for "Pain and Suffering". Same State, same underlying law, same appellate courts, often the same Law firms, but different results. The reason, juries did NOT give awards for "Pain and Suffering" in Pittsburgh, but did in Philadelphia (Please note the actual study was on both metro regions NOT just those two cities). Why did the Juries make different decisions? The General consensus is Pittsburgh, being a Mid-Western City in a East Coast State have Mid-West attitudes and that includes that people are expected to live with their "Pains" not recover for them from others. This is a strong attitude throughout the Mid-West (Traditionally Pittsburgh-Cleveland-Chicago- St Paul/Minneapolis, North of the Ohio and sometimes including the Great Plains).

I mention the above to point the local Lawyers have a rough idea how local juries will decide on the facts of the case (I.e. can he recover for something like "Pain and Suffering" or not) better then someone from outside of the area. Studies have indicated that Judges will award similar Judgments to what juries would do (again the Local Lawyers know how the Local Judges will rule). This is also known to local lawyers who advise the local Police and municipalities and any advice would reflect that knowledge. Thus I can see an attorney giving this advice with the understanding that any legal ramification will have almost no affect on the city's budget, given the 99.99% chance that the City will pay nothing (and that conceding the issue that the taking of the Flag was illegal).

[paulsby]

35. you make excellent points

but let me speak from experience. i'm a cop. i have spoken to our legal advisor before. several of the officers i work with have law degrees. i can't find ANYBODY i have discussed this with who would have taken the flag. i agree that the chance of the dept. / city having a big payout are minimal to nonexistent. but we still don't (ethically) choose to knowingly do illegal acts just because the consequences will be minimal, if nonexistent. that's simply unethical. so, they were either unethical, or woefully ignorant of constitutional rights. NEITHER is acceptable imo

[happyslug]

37. As an attorney I would have told you NOT to take the flag down

But the question was WHAT LEGAL JUSTIFICATION FOR SUCH AN ACT, NOT if I would have told the Police to do what they did. I just went into details how an attorney could make such a rationale. Personally, unless a Police Officer told me a riot was in progress and taking the flag down would end the riot, I would tell the Officer to leave the flag alone. The primary job of any police officer is to keep the peace, but a mere threat that the peace may be disturbed is NOT enough for an Officer to take down this flag (And from I read in the original Article the only "disturbance" was going to occur when the Fourth of July Parade went by, not enough in my opinion to justify taking down the Flag).

The threat to the public peace MUST be something that is a "Clear and Present Danger", not something that MIGHT cause a problem. A man waving a Confederate Flag at a funereal of a black man killed by a white Police officer (and in this hypothetical it does NOT matter if the killing was justified or not, the "clear and present danger" is the hostility of the Black community do to the killing AND then this nut comes in waving a Confederate Flag). The hostile situation should be detected by the police and the flag taken away unless the police do not think there is a good chance that the situation may get out of control (Please note if the Blacks in this hypothetical were upset about the flag wavier, but are keeping the peace in the eyes of the Police, that would be a different story, I would tell the Police to talk to the Flag waver and ask him to leave, but NOT take his flag, and at the same time tell the Police if the Flag waver breaks any other law, trespassing onto private property, the church holding the Funereal, for example, arrest him and take him to the local JP, who will probably release him but the situation should have dissolved by then). Please note I am trying to come up with a situation where I would recommend the police to take a Flag and as you can see it is in an extreme situation when such an act should occur, not just fear of a "Disturbance".

Keeping the peace, like the First Amendment is NOT absolute, we have to balance them when they come into conflict. The key is to make sure the efforts to keep the peace is limited to what is barely needed to keep the peace if the First Amendment is an issue. Sometime a good talk to the owner would be suffice, through in this case the talk should have been made to the people doing the parade that we have to tolerate each other to some extent, including tolerating things we do NOT like (The flag being flown upside down).

In this case the Attorney who advised the Police, in my opinion, went to far, but as I pointed out the attorney may NOT care if the Police get sued but just looking at what the City may have to pay out and finds those cost completely acceptable.

[paulsby]

39. i agree with pretty much everything you say

"A man waving a Confederate Flag at a funereal of a black man killed by a white Police officer (and in this hypothetical it does NOT matter if the killing was justified or not, the "clear and present danger" is the hostility of the Black community do to the killing AND then this nut comes in waving a Confederate Flag). The hostile situation should be detected by the police and the flag taken away unless the police do not think there is a good chance that the situation may get out of control (Please note if the Blacks in this hypothetical were upset about the flag wavier, but are keeping the peace in the eyes of the Police, that would be a different story, I would tell the Police to talk to the Flag waver and ask him to leave, but NOT take his flag, and at the same time tell the Police if the Flag waver breaks any other law, trespassing onto private property, the church holding the Funereal, for example, arrest him and take him to the local JP, who will probably release him but the situation should have dissolved by then). Please note I am trying to come up with a situation where I would recommend the police to take a Flag and as you can see it is in an extreme situation when such an act should occur, not just fear of a "Disturbance". " ... even in this situation, i could see only rare situations where it would be justified to even take this flag away. the general rule is that you can't punish a person for using speech that pisses OTHER people off. that's (generally speaking) their problem, not his problem. like i said, i agree with your analysis, but i don't care what the fucking attorney said. i would not have taken the flag away. it's insane. the first amendment was DESIGNED to protect controversial and inflammatory speech.

[change_notfinetuning]

4. I guess respect for the flag trumps respect for what it stands for. n/t

[No Elephants]

5. He has a law suit, but he needs business advice: If the success of

a business depends on a liquor license, don't spend $200,000 on it before you know your chances of getting the liquor license.

[Historic NY]

18. exactly...aren't licenses issued by the state...appears there are other issues here.

[Pharlo]

23. Liquor licenses in WI are issued by local municipalities, not the state.

When a business wants to sell liquor, they go before the local government for said license. That is one of the things that got Alderman McGee in trouble in Milwaukee. He was, essentially, using liquor licenses as a means of 'controlling' local businesses by issuing or declining liquor licenses based upon personal discretion - or, what was it worth to Alderman McGee.

[Marx is my homeboy]

6. ALL of the flags in america should be upside down

because an upside-down flag shows distress. and we are in distress baby.

[madamesilverspurs]

16. My flag was upside down for eight years.

With great joy I turned it right side up on January 20th.

[nosmokes]

7. those pigs and the DA need to spend a 24 in jail. The DA should face

much harsher treatment, up to and including disbarment as far as I'm concerned. Blatant disrespect for basic rights while in a position of authority shows total disregard for for the oath he took to pass the bar and to be sworn in as DA. He's a fucking criminal, nothing less.

[MineralMan]

8. He has every right to display his flag upside down,

but it's likely to be a bad business decision. Probably he's just assured that half the people in that town will never set foot in his restaurant...assuming he can get his liquor license. I don't know, but I think if I wanted to open a place like that, I'd make damn sure the liquor license was going to be forthcoming.

In any case, I'll make a note not to stop in...in the unlikely event I find myself there.

[Caoimhe]

12. the fact he had the balls and the consequences he suffered

would inspire me to stop in and give him my business.... just sayin. I love courage against popular opinion.

[Caoimhe]

9. WOW and here I thought I lived in a free country..... wtf?

After 9-11 when all of us were inundated with flags on houses, businesses, cars, trucks, portapotties, restaurants, utilities.... I had taken a short cut through the nearest neighborhood and some lady had bought a pack of Chinesian 'Merkin Flags and planted them all over her flower beds. Problem was... about 3/4 of them were stapled on the plastic straw upside-down. She didn't even notice. I thought about knocking on her door and asking what she thought the nation was distressed over. I knew it wouldn't be the same thing as me, though I'm sure we both felt fear. Me (of my own government and the consequences of failed geopolitics) and her (of all Arabs and foreigners and the subvertives like the Dixie Chicks and Cat Stevens).

I know there is controversy over burning a flag but I had no idea it was a LEGAL problem to fly one upside down. Wow, we really should make war with nations so that they can enjoy our level of freedom!

*corrected homophone*

[Politicalboi]

10. He needs one of these

Meet Miss Bar Bee Que. She brings in a lot of business.

http://www.breitbart.tv/ohio-restaurant-wins-zoning-fight-to-keep-busty-mannequin-on-sidewalk/

[ohio2007]

30. he needs a "Lick Her" license if he doesn't want to sell just coffee

:sarcasm:

kinda like a take on that Maine story

[Robb]

11. Looks like enough jackassery to go around on both sides here

...although only one side violated the U.S. Constitution.

Is it wrong to hope he wins a bunch of money from the county, but then loses it on the way home? :D

[nosmokes]

13. Just WTF did Mr Congine do (besides exercise his Constitutional Right) that...

falls into your obviously very broad category of *jackassery*?

and BTW, I should tell ya your ears are looking fairly long from here for making the statement...;)

[Robb]

14. Signaling distress in a way designed to tick people off.

Of course he has every right to do it. But if your idea of distress is in not getting a liquor license (and we don't know why it was denied), maybe you need to reexamine your priorities.

Edited to add: decided to see why they denied the application, minutes are here: http://www.villageofcrivitz.com/meetings.htm

1/20/09 Board Meeting Minutes
Page 3
18) Class B Reserve Liquor & Fermented Malt Beverage License Application: VTC Tavern, LLC: (Whole)
Motion by Trustee Volk, seconded by Pres. Deschane, to issue a Class B Reserve Liquor & Fermented Malt
Beverage license effective 1/20/09 through 6/30/09 to VTC Tavern, LLC, Vito Congine, Jr., Agent. Roll call
vote: Keller: No, Volk: Yes, Swanson: No, Rich Porfilio: No, Janis Porfilio: No, Kostuch: No. Motion failed
for lack of voting requirement.


Motion by Trustee Janis Porfilio, seconded by Trustee Rich Porfilio, to deny issuance of a Class B Reserve
Liquor & Fermented Malt Beverage license to VTC Tavern, LLC, Vito Congine, Jr., Agent, due to current
economic conditions and concerns within the community as to an additional licensed establishment, and to
concerns regarding the location of the establishment. Roll call vote: Keller: Yes, Volk: No, Swanson: Yes,
Rich Porfilio: Yes, Janis Porfilio: Yes, Kostuch: Yes. Motion carried.

Edited again to add: it looks like he already has another business with a liquor license, which was renewed six months later. :shrug:

[SpankMe]

20. None the less...

...piss people off it may, but it is not illegal to piss people off. People do not have a right to not be pissed off. His legal right to fly a flag upside down was violated. The people's not-legally-protected-right to not be pissed off was preserved. It's completely backwards.

[Fumesucker]

24. That sure sounds like his competition got to the licensing authority..

Why should "current economic conditions" play any part in whether or not a license is issued?

The only reason I can think of is because it might draw business away from already established concerns, is that a valid reason to deny a license?

[Robb]

26. Established businesses like his other bar?

Councils (in my experience) deny for lots of reasons, including "there are enough liquor licenses in our town right now," which is what it looks like here.

Although you're right, it could be a larger conspiracy. Or any other number of reasons.

[Robb]

32. Aha. Update and clarification:

Apparently there is a Vito Sr. and a Vito Jr. and I have been confusing them. Some additional info:

• The older Congine owns a good-sized tavern elsewhere in town, and was among several tavern owners who spoke at the public hearing that there were enough taverns in town already.

• The town apparently offered the younger Congine a beer/wine license (as opposed to a hard liquor license, which he was after), with an opportunity to review his establishment after six months. He didn't want to go that route.

• Vito Congine Jr. has a felony conviction on his record, which may have factored into the town's decision not to extend a liquor permit in his direction, although there is no indication that was a reason in the town meeting minutes. I know in Colorado a criminal background check is part of the license application.

...All of which has, of course, nothing to do with the fact that the police were WRONG to remove his flag and stifle his Constitutional right to protest.

[tomm2thumbs]

15. Maybe he was flying it so they could see it properly in Australia

that's my take

[harmonicon]

17. idiots on all sides

Ok, yeah, this guy's rights were violated, which is creepy to the nth degree - but what a fucking moron!!! He should have been flying it to show distress caused by his massive stupidity. What moron would just expect to get a liquor license? That should be priority #1 before putting money into the restaurant. Further more, what fools gave him a loan to start a restaurant where he planned to serve alcohol but didn't have a license?

[Fumesucker]

25. He could have been told by the authority that it would be no problem getting a license..

It wouldn't surprise me to find out that you can't just get a license without having a location already, local rules and ordinances can be extremely screwy, particularly when it comes to something like liquor.

I wouldn't automatically assume the guy was stupid over this, I suspect there is more to the story.

[harmonicon]

27. maybe you're right

but it just sounds like a town chock-full of idiots to me.

[SpankMe]

19. "Free country" my ass. n/t

[tritsofme]

21. If you're having such a hard time getting a liquor license in Wisconsin

there is likely more to the story...

[AngryAmish]

22. Beautiful part of the country up there

I love the northwoods.

[ohio2007]

29. why wouldn't the village give him a liquor license ? thats what brings in the tax revenue

a simple apology given to him by the village isn't the whole story imo

[stumprancher]

36. They are theives

IMO, if they removed his property without his permission.

[The abyss]

38. Gee what horror were the forces in blue protecting against?

Drug dealer? Violent psychopath? Evil spy?

Or just someone they didn’t agree with and knew perfectly well there would be no “call” on their actions.

Power attracts the very sort of people who should never have it.