Congine v. Vill. of Crivitz & Allen Brey

• Citation: 947 F.Supp.2d 963
• Decision Date: 28 May 2013
• Docket Number: Case No. 11–C–0637.
• Parties: Vito CONGINE, Jr., Plaintiff, v. VILLAGE OF CRIVITZ and Allen Brey, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

947 F.Supp.2d 963

Vito CONGINE, Jr., Plaintiff,

v.VILLAGE OF CRIVITZ and Allen Brey, Defendants.

Case No. 11–C–0637.

United States District Court, E.D. Wisconsin.

May 28, 2013.

Christopher M. Meuler, Joseph M. Peltz, Friebert Finerty & St. John SC, Milwaukee, WI, for Plaintiff.

Charles H. Bohl, Andrew A. Jones, Whyte Hirschboeck Dudek SC, Milwaukee, WI, Crystal A. Banse, Steven C. Kilpatrick, Wisconsin Department of Justice, Madison, WI, for Defendants.

DECISION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

WILLIAM C. GRIESBACH, Chief Judge.

Plaintiff Vito Congine, Jr., filed this civil rights action against the Village of Crivitz and Marinette County District Attorney Allen Brey pursuant to 42 U.S.C. § 1983 for violating his rights under the First and Fourteenth Amendments. Congine alleges that his rights were violated when the Village police chief, after seeking Brey's advice, entered Congine's property on July 4, 2009, without a warrant and removed an American flag that Congine had been flying upside down. The case is before the court on the defendants' motion for summary judgment and Congine's motion for partial summary judgment. For the reasons set forth below, Congine's motion for partial summary judgment against the Village and Brey's motion will be granted. The balance of Congine's motion and the Village's motion will be denied.

BACKGROUND

The parties are in general agreement concerning the facts leading up to July 4, 2009. Upset that the Village had denied him a liquor license for his business, Congine began flying an American flag upside down on the flagpole located in the parking lot of his property which he leased to a T-shirt silk screening business. Congine, a former Marine, understood that flying the flag upside down was a symbol of distress, and he was attempting to convey his belief that he and his property were under distress as a result of the Village Board's actions. Unfortunately, others in the community viewed his conduct as a sign of disrespect for their country and its ideals.

Congine began flying the flag upside down in early to mid-June 2009. Either Congine or his neighbor Steven Klein, when Congine was traveling, would each day raise the inverted flag and then take it down in the evening. On July 3, 2009, Village Chief of Police Michael Frievalt received verbal complaints from citizens—primarily local members of the local American Legion chapter—who were apparently offended by the flag being flown upside down. At the time, Chief Frievalt stated he responded to the complaints by explaining that it was Congine's “right to do that.” Congine was not present at the time, as he had been working in Illinois for several weeks leading up to July 4, 2009. Klein had been raising and lowering the inverted flag in his absence.

On July 4, 2009, the Village held its annual Independence Day parade, and it is at this point that the parties' versions of the events begin to differ. Congine's property, and the upside-down flag, were adjacent to the staging area for the parade where participants gathered to prepare for the parade start. According to the Village, the crowd that gathered along the parade route that day numbered between 3,000 and 4,000. Klein cites evidence suggesting it was far smaller, approximately 800.

Chief Frievalt arrived early in the morning and began closing down the parade route at approximately 7:00 a.m. so that the parade participants could begin setting up and for crowd control purposes. He was joined by Officer Craig Kasten, the Village's only other police officer, and two unsworn auxiliary officers who volunteered to assist with the parade The first group in the parade were the members of the local American Legion chapter and its honor guard. Early in the morning, some of the members of the American Legion, still angered about the flag being flown upside down, again complained to Chief Frievalt. The American Legion members were particularly upset because a soldier from near-by Peshtigo had recently been killed in action and a memorial to other soldiers killed in action had recently been on display in the area. According to Chief Frievalt and Officer Kasten, some people were shouting, and crowd members made threats to take the flag down themselves, cut down the flag pole, burn the building down, or cause bodily harm to the property owner.

Chief Frievalt and Officer Kasten attempted to calm people down, but as the crowd in the immediate area grew to several hundred, they became increasingly concerned that things could get out of control. Officer Kasten's testimony paints the scene from the Village's perspective and explains why it was not a simple matter of making an arrest:

A Being there with that temperament of that crowd and the anger and the comments that were made, it is not safe in my opinion to take—try and take one of those people into custody because I believe that would have led to an all-out riot or some sort of altercation. We have a two-man police department. We don't have a SWAT team. We don't have a—We have two men. Sheriff's department has very minimum coverage on holidays, minimum of three. They're busy at other functions in the county. It was my belief that for my safety and other people in the crowd, had we attempted to arrest those people making those threats, that we would have a full-scale riot on our hands.

Q And just so I'm understanding for our record sake and everything, when you say “riot,” you know, what does the word “riot” mean to you? What's your understanding?

A A free-for-all. It would have been people pushing, shoving, hitting, destroying things, hurting people. People were extremely angry about that. It was a very volatile crowd. We did not have the manpower or resources to handle that crowd and attempt to make arrests out of it.

(ECF No. 39, ¶ 53.)

Congine, on the other hand, points to Klein's testimony as evidence that the situation was not anywhere near as dangerous and volatile as the defendants claim. Klein testified that he noticed that the flag was being taken down at about 9:00 a.m., an hour before the parade was scheduled to start. At that time, there were only eight to twelve people within a block of the flagpole. Klein testified that he did not hear any commotion or loud noises before he noticed police taking down the flag. He also testified that most of the comments from people in the crowd were not threats that they intended to take action themselves, but suggestions or demands that the police or someone else do so. (ECF No. ¶¶ 41, 42.)

In any event, it is undisputed that the officers discussed how to handle the situation, and Officer Kasten called Marinette County District Attorney Allen Brey. Officer Kasten explained the situation, including that the crowd was unhappy, making threats, and demanding the police take action. Based on his understanding that there was a serious risk of riot and violence if the inverted flag was not removed, Brey advised Officer Kasten that he should try and locate the property owner and ask him to take it down. If the officers could not find the property owner or he refused to take it down, Brey instructed Officer Kasten that the officers should take the flag down and return it to the property owner after things calmed down. After Officer Kasten informed Chief Frievalt of Brey's advice, Chief Frievalt entered upon Congine's property and removed the flag. The flag was returned by the police without damage the next day.

LEGAL STANDARD

A motion for summary judgment should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Material” means that the factual dispute must be outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d 1286, 1291 (7th Cir.1997). A “genuine” issue of material fact requires specific and sufficient evidence that, if believed by a jury, would actually support a verdict in the non-movant's favor. Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing there are no facts to support the non-moving party's claim. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In determining whether to grant a motion for summary judgment, the court should consider the evidence presented in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. When the record, taken as a whole, could not lead a rational jury to find for the non-moving party, there is no genuine issue and therefore no reason to go to trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

ANALYSIS

A. First Amendment Claim

The First Amendment protects conduct, symbols, and non-verbal speech that express ideas or convey a particularized message reasonably understood by viewers. Texas v. Johnson, 491 U.S. 397, 404–06, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Spence v. State of Washington, 418 U.S. 405, 409–11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam). In Johnson, the Supreme Court held that the act of burning American flag during protest rally was expressive conduct within the protection of the First Amendment. Johnson, 491 U.S. at 406, 109 S.Ct. 2533. From this holding, it clearly follows that Congine's public display of an upside-down flag is likewise protected symbolic speech. Though the message Congine intended could have been conveyed in a more direct and less offensive manner, the First Amendment has been broadly construed to protect both the message and the manner in which it is expressed. See Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (holding that wearing jacket with the words “Fuck the Draft” in public constitutes protected speech); see also Spence, 418 U.S. at 410, 94 S.Ct. 2727 (“In many of...