Judge Rules for Vet Who Flew Flag Upside Down

A federal judge has ruled in favor of a former Crivitz man who flew an American flag upside down to protest the village's denial of a liquor license for his supper club.

Citing fears that angry parade goers might harm Vito Congine Jr. or damage his club, police went on his property and confiscated the flag on July 4, 2009.

Congine sued, and late last month Chief U.S. District Judge William Griesbach ruled in Congine's favor.

"There must be more than the mere potential for a breach of the peace to justify censorship of expressive conduct," Griesbach wrote in a 21-page order.

"While it may be a good practice for law enforcement officers to envision worst case scenarios, they cannot intrude on protected speech on the basis of such scenarios, absent a clear and present danger.

"If the mere possibility of violence is sufficient to justify government intrusion, this essential freedom can become little more than a mirage."

Griesbach found that the village had violated Congine's constitutional rights, but that Marinette County District Attorney Allen Brey, who had advised Crivitiz police by phone that they should take down the flag if a riot was the alternative, had qualified immunity from liability.

The next step in the case would be a trial to determine Congine's damages, unless he and the village settle.

Larry Dupuis, legal director for the ACLU of Wisconsin, said Congine contacted the organization for help after it criticized Crivitz police action. Christopher Meuler and Joseph Peltz of Friebert, Finerty & St. John in Milwaukee have handled the case.

"If it wasn't for the ACLU, you'd never know my name," said Congine, now living in Florida. "We'd be just another story you hear in cocktail talk about small towns."

Congine, 50, said he grew up in northern Illinois but thought Crivitz seemed like a nice place to raise a family. He and his wife bought a home there in 1996. After time in the U.S. Marine Corps, he bought the Trackside Saloon in 2002 and was doing a great business until he was ordered to Iraq with the reserves.

He said his wife moved back to Illinois and they sold out to a partner. On his return from Iraq, they began planning the Crivitz Cabin, at a former grocery store. He said the village promised him a liquor license until about two months before his scheduled opening, saying there was concern about too much competition in town.

Congine challenged the denial in court, and won, he said, but the village then came up with a new reason: He had moved to Illinois again for work and they said only Wisconsin residents could get a license.

"We just said, 'enough,' " Congine said.

They had put nearly $100,000 into the supper club, and they put up the inverted flag as a sign of distress.

He said they eventually lost everything in bankruptcy and decided to start over in Florida. He said people in Naples have been a lot more accepting and friendlier than in Crivitz.

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