Norse v. City of Santa Cruz

Citation629 F.3d 966
Decision Date15 December 2010
Docket NumberNo. 07-15814,07-15814
PartiesRobert NORSE, Plaintiff-Appellant, v. CITY OF SANTA CRUZ; Christopher Krohn, individually and in his official capacity as Mayor of the City of Santa Cruz; Tim Fitzmaurice; Keith A. Sugar; Emily Reilly; Ed Porter; Scott Kennedy; Mark Primack, individually and in their official capacities as Members of the Santa Cruz City Council; Loran Baker, individually and in his official capacity as Sergeant of the Santa Cruz Police Department; Steven Clark, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

David J. Beauvais, Oakland, CA; and Kate Wells, Law Office of Kate Wells, Santa Cruz, CA, for plaintiff-appellant Robert Norse.

George J. Kavacevich, Atchison, Barisone & Condotti, Santa Cruz, CA, for defendants-appellees City of Santa Cruz et al.

Appeal from the United States District Court for the Northern District of California, Ronald M. Whyte, Senior District Judge, Presiding. D.C. No. CV-02-01479-RMW.


Opinion by Judge THOMAS; Concurrence by Chief Judge KOZINSKI.


THOMAS, Circuit Judge:

When Robert Norse gave the Santa Cruz City Council a silent Nazi salute, he was ejected and arrested. He sued cityofficials for violating his rights under the First Amendment. On the eve of trial, the district court sua sponte granted judgment against him, holding that the city officials were entitled to qualified immunity. Because the district court failed to provide Norse adequate notice and opportunity to be heard, among other procedural errors, we reverse the judgment of the district court.


On March 12, 2002, Robert Norse was ejected from a Santa Cruz City Council ("City Council") meeting and arrested after an incident in which he gave the Council a silent Nazi salute. Two weeks later, he filed a complaint in the District Court of Northern California, challenging the constitutionality of the City Council's decorum policy on its face and as applied to his conduct at the 2002 meeting. He named as defendants the City of Santa Cruz; Christopher Krohn, the Mayor ("Mayor"); Tim Fitzmaurice and Scott Kennedy, members of the Santa Cruz City Council; Loran Baker, the sergeant-at-arms of the meeting (and also a member of the Santa Cruz police force); and several others (collectively "the City").

The district court granted the City's motion to dismiss. Norse appealed. A panel of this court affirmed dismissal of Norse's facial challenge, but reversed dismissal of the as-applied challenge. Norse v. City of Santa Cruz (" Norse I "), 118 Fed.Appx. 177 (9th Cir.2004). Construing the City's rules to proscribe only disruptive conduct, the panel held the rules were facially valid under controlling circuit case law. See id. at 178 (citing White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990)). The panel was not able to determine from the pleadings whether the Nazi salute was disruptive, however, and thus had "no way of assessing the reasonableness of the Mayor's conclusion that Norse should have been ejected." Id. It reversed and remanded the as-applied challenge.

On January 13, 2004, while his appeal was pending before this Circuit, Norse again was ejected from another Santa Cruz City Council meeting and arrested, this time for whispering to another meeting attendee. On remand, Norse amended his complaint to challenge this ejection, as well. In June 2005, the district court entered a case management order giving the parties just less than six months to conduct limited discovery, and requiring that all dispositive motions be heard no later than December 16, 2005.

Neither party filed any dispositive motions.1 The district court scheduled a jury trial for March 26, 2007. The parties filed trial briefs, motions in limine, evidentiary objections, proposed voir dire questions and jury instructions, and otherwise prepared for trial. In one motion in limine, Norse objected to the City's efforts to introduce evidence of his participation in City Council meetings other than the 2002 and 2004 meetings discussed in the complaint. At a pretrial hearing on March 15, Norse also objected to the admissibility of meeting minutes that purported to describe his conduct at these meetings.

On Thursday, March 22, 2007, the district court issued an order regarding trial proceedings in which it stated that rather than hold trial on the 26th, it would "consider the question of whether any of the individual defendants ... is entitled to qualified immunity." The order also indicated the court was likely to deny, in part,Norse's motion in limine to exclude evidence of his actions at other City Council meetings, but stated that it would consider the specific evidence that the City wished to have admitted and would make evidentiary rulings on the 26th as well.

That Monday, Norse and the City appeared for a hearing. Norse objected to what he saw as an unorthodox procedure, arguing that he had been preparing for trial and did not have time to produce what in effect needed to be an opposition to summary judgment. He argued that videotapes of the 2002 and 2004 meetings were not accurate portrayals of the meetings inasmuch as they were only excerpts. He continued to object to the admissibility of evidence regarding other City Council meetings. He argued that he had witnesses to call who could give context to the videos. He opposed qualified immunity on the merits. The district court did not permit Norse to submit further evidence or present testimony.

On March 28, the district court entered a summary judgment order. See LaLonde v. Cnty. of Riverside, 204 F.3d 947, 953 (9th Cir.2000) ("The court's pretrial order granting qualified immunity amounted to a sua sponte summary judgment."). It determined that the individual defendants were entitled to qualified immunity and that there was no independent basis to hold Santa Cruz liable. Although the district court appeared to consider evidence of Norse's conduct at two 2001 City Council meetings, it did not rule on Norse's motion in limine, nor did it resolve all pending evidentiary questions.

Norse appealed. The original panel retained jurisdiction over the case, and it affirmed. Norse v. City of Santa Cruz (" Norse II "), 586 F.3d 697, 700 (9th Cir.2009). This time, Judge Tashima, dissenting in part, argued that "the record supports the inference that the Mayor and members of the City Council excluded Norse from the 2002 meeting because they disagreed with the views he expressed by giving his silent Nazi salute." Id. at 701 (Tashima, J., dissenting).

A majority of nonrecused active judges voted to rehear this case en banc pursuant to Circuit Rule 35-3. After reviewing the case, we conclude that the procedure the district court used in summarily disposing of Norse's claims was deficient and unfair to Norse.


District courts unquestionably possess the power to enter summary judgment sua sponte, even on the eve of trial.2 However, the procedural rules governing Rule 56 apply regardless of whether the district court is acting in response to a party's motion, or sua sponte. See Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989); Ind. Port Comm'n, 702 F.2d at 111. Here, the district court erred in granting summary judgment sua sponte without providing Norse adequate notice and opportunity to be heard and without ruling on Norse's evidentiary objections.


" Sua sponte grants of summary judgment are only appropriate if the losingparty has reasonable notice that the sufficiency of his or her claim will be in issue." United States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 955 (9th Cir.2008) (internal quotation marks omitted). "Reasonable notice implies adequate time to develop the facts on which the litigant will depend to oppose summary judgment." Portsmouth Square, Inc. v. S'holders Protective Comm., 770 F.2d 866, 869 (9th Cir.1985).

A district court that "does not comply with the advance notice and response provisions of Rule 56(c) has no power to enter summary judgment." Ind. Port Comm'n, 702 F.2d at 111. At the time the district court acted, Rule 56 required that summary judgment motions "be served at least 10 days before the day set for the hearing," even when the court was acting sua sponte. Fed.R.Civ.P. 56(c) (1987); 3 see Routman, 873 F.2d at 971.4

In this case, the district-court-imposed deadline for filing dispositive motions had passed some fifteen months before trial. On the Thursday before the Monday trial, the district court notified the parties of its intent to hear summary judgment arguments on the day set for trial. Under the rules operative at the time, Norse was only afforded two-days' notice before the hearing. See Fed.R.Civ.P. 6(a)(2) (1985 amendments) (weekend days excluded from calculation). Two-days' notice did not comply with the requirements of Rule 56, and it did not afford Norse adequate time to prepare for the hearing, notwithstanding the proximity of the trial date. See Stella, 4 F.3d at 55 ("[T]rial preparation is neither the same as, nor an acceptable substitute for, the special sort of preparation, e.g., securing affidavits, needed to oppose a motion for summary judgment.").

Because adequate notice was not given within the period specified by the rules, the district court was without power to enter summary judgment sua sponte.5


Additionally, Norse did not have a "full and fair opportunity to ventilate the issuesprior to the district court's summary judgment on the [his] claims." Greene v. Solano Cnty. Jail, 513 F.3d 982, 990 (9th Cir.2008) (internal quotation marks omitted).

Norse told the district court that he wanted to call attendees of the Council meetings as witnesses to testify about whether Norse actually...

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