Acosta v. City of Costa Mesa

• Decision Date: 05 September 2012
• Docket Number: No. 10–56854.,10–56854.
• Citation: 694 F.3d 960
• Parties: Benito ACOSTA, Plaintiff–Appellant, v. CITY OF COSTA MESA; Allan Mansoor, Mayor of the City of Costa Mesa, in his official and individual capacities, Defendants–Appellees, John Hensley, Chief of Police, Costa Mesa Police Department; David Andersen; David DeHuff; John Doezie; Bryan Glass; Daniel Guth; David Makiyama; Jeff Tobin; Derek Trusk, in their official and individual capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

694 F.3d 960

2012 Daily Journal D.A.R. 12,531

Benito ACOSTA, Plaintiff–Appellant,

v. CITY OF COSTA MESA; Allan Mansoor, Mayor of the City of Costa Mesa, in his official and individual capacities, Defendants–Appellees,John Hensley, Chief of Police, Costa Mesa Police Department; David Andersen; David DeHuff; John Doezie; Bryan Glass; Daniel Guth; David Makiyama; Jeff Tobin; Derek Trusk, in their official and individual capacities, Defendants–Appellees.

No. 10–56854.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted July 9, 2012.

Filed Sept. 5, 2012.

Belinda E. Helzer, Esq., ACLU Foundation of Southern California, Orange, CA, for the plaintiff-appellant.

M. Lois Boback, Esq. (argued) and Daniel K. Spradlin, Esq., Woodruff, Spradlin & Smart, APC, Costa Mesa, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, David O. Carter, District Judge, Presiding. D.C. No. 8:06–cv–00233–DOC–MLG.

Before: RICHARD C. TALLMAN and N. RANDY SMITH, Circuit Judges, and DEE V. BENSON, District Judge.^*

Opinion by Judge TALLMAN; Dissent by Judge N.R. SMITH.

OPINION

TALLMAN, Circuit Judge:

Costa Mesa Municipal Code § 2–61 makes it a misdemeanor for members of the public who speak at City Council meetings to engage in “disorderly, insolent, or disruptive behavior.” Benito Acosta (“Acosta”) was removed from the Costa Mesa City Council meeting for an alleged violation of the ordinance. Acosta appeals the district court's dismissal of his First Amendment facial challenge to the ordinance. He also appeals the district court's grant of partial summary judgment in favor of the California city and various individual police officers on his state-law free speech claims and his Fourth Amendment claims. A jury returned a defense verdict on all remaining issues submitted for trial. He also appeals the district court's discretionary decisions to admit certain evidence, refusal to give his proposed limiting instruction, denial of his renewed motion as a matter of law after the jury returned its verdict, and the denial of declaratory relief. He claims that the ordinance is facially invalid and that it was enforced against him only because he expressed a view contrary to the Mayor's.

Because § 2–61 fails to limit proscribed activity to only actual disturbances, we reverse the district court's constitutionality ruling and find the statute facially invalid. However, the word “insolent” is easily removed from the ordinance without detriment to the purpose of § 2–61 and it need not be wholly invalidated since it was properly applied to Acosta's disruptive behavior. We affirm the remainder of the district court's determinations.

I

Petitioner–Appellant Benito Acosta is a U.S. citizen of Mexican descent who resides in Orange County, California. Acosta is a founding member of the Colectivo Tonantizin, an organization that represents the rights of undocumented and immigrant workers and their families. Defendants are the City of Costa Mesa (“City”), Mayor Allan Mansoor (the “Mayor”), Chief of Police John Hensley, and several individual police officers.¹

The Costa Mesa City Council meets on the first and third Tuesday of every month, with a public portion commencing at 6:00 p.m. The Mayor is the presiding officer who chairs the meeting. In compliance with California law, members of the public may address the City Council concerning any item listed on the meeting agenda at the time designated for public comment.² Speakers are each afforded three minutes to speak.

The City ordinances establish rules regulating council meetings. See Costa Mesa Muni. Code §§ 2–37–2–87. At issue here is § 2–61, which governs individual conduct at council meetings. A violation of § 2–61 may be prosecuted as a misdemeanor. Meetings are recorded by video cameras and the relevant recordings are part of the record on appeal.

In December 2005 the Mayor proposed that the City enter into an agreement with Immigration and Customs Enforcement (“ICE”) to have its police officers designated immigration agents with the authority to enforce federal immigration laws in the City. The proposal was placed on the City Council's December 6, 2005, agenda and passed by a vote of three to two. Members of the public were permitted to comment on the ICE agreement.

Acosta believed an agreement with ICE would undermine public safety, arguing it would deter undocumented workers from reporting crimes against them for fear of deportation. He attended the December 6 council meeting to express his opposition to the proposal. When Acosta's time came to speak, the video recordings show that he was visibly emotional and agitated.³Toward the end of his comments he called the Mayor a “racist pig,” at which point the Mayor told Acosta to stop. Acosta repeated his slur, which prompted the Mayor to cut Acosta's speaking time short by calling for a recess. Acosta then responded by calling the Mayor a “fucking racist pig.” The Council nonetheless passed the proposal.

After receiving local and national media attention, the City Council again placed the ICE agreement on the agenda of the next regular Council meeting on January 3, 2006. Prior to that meeting, groups supporting and opposing the agreement demonstrated outside City Hall. Council Chambers was filled to overflow capacity and additional demonstrators remained outside. During the public comment portion of the meeting a total of twenty-five speakers addressed the City Council, fifteen in favor of the agreement and ten against.

Jim Gilchrist, co-founder of the Minuteman Project, was one of the first speakers in favor of the ICE agreement. At the beginning of his time he turned to the audience and stated that he would like for the supporters of his position to stand silently at the end of his speech. Some members of the audience began to stand. The Mayor interrupted to clarify whether Gilchrist was asking for people to stand to show that he would be the only speaker representing this group.⁴ Gilchrist turned back to the Mayor and agreed that he was representing the views of the entire group. The Mayor then stated that it would be helpful if the other groups could also send up one representative; he added that everyone was entitled to speak if they wished, however.

Acosta's turn to speak in opposition to the ICE agreement began about fifty minutes later. Approximately two minutes into his remarks, Acosta turned away from the council and toward the audience to ask members who agreed with his viewpoint to stand. The Mayor interrupted him, saying, “No, we're not going to do that.” In defiance of that order, still facing the audience, Acosta nonetheless said “Do it” three times. Approximately twenty to thirty people stood up in response to his urging and some began clapping. The Mayor then abruptly recessed the meeting and indicated the council would return in a few minutes.

Acosta then turned back to face the departing council in an attempt to complete his speech. As he did so, an officer approached him at the podium. Acosta testified that at first the officers told him his time was up and moved the microphone. The officers asked Acosta to step down from the podium and leave the chambers, but Acosta did not immediately comply. Instead he repeatedly asked why his speaking time was cut short and why he was being asked to leave the podium. The officers then tried to quietly escort him out of the chambers, but Acosta stopped and asked to retrieve his notes from the podium. After he retrieved his notes, Acosta began to tell the officers not to touch him and jerked away from their attempts to guide him out of the room.

Chief Hensley approached the group and directed his officers to take Acosta out of the Council Chambers. The officers again tried to guide Acosta away from the podium, but Acosta attempted to prevent his removal by leaning away from the officers and planting his feet. Sergeant Glass testified that Acosta was “not complying” with their requests to leave and he was “stomping or placing his feet to hesitate or hamper his movement.” The officers then took Acosta's arms. Acosta alleged that the officer behind him also wrapped his arm around Acosta's neck, similar to a choke hold, and that the officers kicked, dragged, and punched him while removing him. Sergeant Glass testified that Lieutenant Andersen applied an upper-body control hold with his arm across Acosta's chest and the video recording, submitted by Acosta, does not show any kind of kicking or punching.

At this point, the officers testified he was not under arrest, but only being removed to help diffuse an escalating situation. Once the officers were outside the Council Chambers, however, they encountered a large crowd and Acosta increased his efforts to resist the officers. When the officers attempted to move Acosta into the City Hall and away from the volatile crowd of demonstrators outside City Hall (some of whom threw objects at the police), Acosta wrapped his legs and arms around a pole in an attempt to prevent the officers from moving him. The officers separated him from the pole and began moving him toward the City Hall. Acosta continued to resist, causing himself and an officer to fall to the ground. Once inside the City Hall, Acosta was placed in handcuffs. Chief Hensley and another witness testified that Acosta complained that the cuffs were making his arms hurt.

Acosta brought eleven claims against Mayor Mansoor, Chief Hensley, the City, and certain individual police officers. The claims relevant to this appeal include: (1) a First Amendment facial challenge to § 2–61; (2) a facial challenge to § 2–61 under the free speech clause of the California Constitution; (3) a request for a declaration that the defendants enforced § 2–61 in an unconstitutional manner; (4) a claim that he was unreasonably and unlawfully seized in violation of the Fourth Amendment; (5) an as-applied challenge to § 2–61 under the ...