Norse v. City of Santa Cruz

• Decision Date: 03 November 2009
• Docket Number: No. 07-15814.,07-15814.
• Citation: 586 F.3d 697
• Parties: Robert 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.
• Court: U.S. Court of Appeals — Ninth Circuit

586 F.3d 697

Robert 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.

No. 07-15814.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2009.

Filed November 3, 2009.

David Beauvais, Oakland, CA, for the plaintiff-appellant.

Kathleen Wells, Santa Cruz, CA, for the plaintiff-appellant.

George J. Kovacevich, Santa Cruz, CA, for the defendants-appellees.

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

Before: MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN and A. WALLACE TASHIMA, Circuit Judges.

SCHROEDER, Circuit Judge:

Plaintiff-Appellant Robert Norse was ejected from two meetings of the Santa Cruz City Council, one in 2002 and one in 2004. He filed this 42 U.S.C. § 1983 action against the City and its Mayor and Council members alleging violation of his First Amendment rights. In a 2004 unpublished, non-precedential disposition, we unanimously upheld the validity of the Council rules that were being enforced at the time of the ejections. Norse v. City of Santa Cruz, 118 Fed.Appx. 177 (9th Cir. 2004) ("Norse I"), 118 Fed.Appx. at 178. The rules authorize removal of "any person who interrupts and refuses to keep quiet . . . or otherwise disrupts the proceedings of the Council." We observed that the rules are materially similar to the regulations we upheld in White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990). Id.

A majority of us, however, reversed and remanded the district court's dismissal on the pleadings, holding that there was no way of assessing the reasonableness of the Mayor's actions, particularly his action in ordering Norse's 2002 ejection after Norse gave a Nazi salute to protest the Mayor's administration of the Council's rules. Id. at 178-79.

On remand, the district court ruled that the Mayor acted reasonably in ordering both of Norse's ejections, because Norse was supporting the conduct of persons in the meeting who were causing a disruption. Our consideration of the case has been delayed because of the difficulty in obtaining the factual record underlying the district court's rulings. This record consists principally of the video tapes of the two episodes in question, so the underlying facts are not disputed. There is no doubt that ordering Norse's ejection in 2004 was a reasonable application of the rules of the Council. The videotape shows that Norse was engaged in a parade about the Council chambers protesting the Council's action, and his conduct was clearly disruptive.

With respect to the March 12, 2002 meeting, the behavior that prompted Norse's ejection was his giving a Nazi salute in support of a disruptive member of the audience who had refused to leave the podium after the presiding officer ruled that the speaker's time had expired, and that the portion of the Council meeting devoted to receiving oral communications from the public had ended. Two members of the audience in the rear were creating a disruption. When the Mayor told the speaker at the podium that her time had expired, the speaker was visibly unhappy with the ruling, and Norse directed a Nazi salute in the presiding officer's direction. The salute was obviously intended as a criticism or condemnation of the ruling.

The Mayor had resumed Council business by reading announcements and did not notice Norse's Nazi salute until another Council member called the Mayor's attention to it. The district court accurately described the proceedings, as portrayed on the video, as follows:

Since he was reading, [the Mayor] did not notice Norse's gesture but within seconds council member Fitzmaurice called his attention to the fact that Norse had made a Nazi salute. . . . [The Mayor], . . . as the presiding officer in charge of running the meeting, was suddenly faced with a meeting that had been interrupted by an offended council member. [The Mayor] had just finished dealing with two disruptive members of the public, at least one of whom Norse was supporting with his salute. [The Mayor] also knew that two Council members in the previous months had expressed to Norse their abhorrence of his Nazi gestures which reasonably suggests that Norse intended his salute at the March 12, 2002 meeting to be disruptive. Further, Norse had begun to verbally challenge Fitzmaurice's comments.

Under those circumstances, the district court found that the Mayor's action in evicting Norse from the chambers was reasonable, and that the Mayor and council members were all entitled to qualified immunity.

Our well-settled law gives great discretion to presiding officers in enforcing reasonable rules for the orderly conduct of meetings. In Kindt v. Santa Monica Rent Control Board, 67 F.3d 266, 269 (9th Cir.1995), we upheld the Santa Monica Rent Control Board's action in ejecting a speaker several times because his conduct disrupted the orderly processes of meetings. We have long recognized that First Amendment rights of expression are more limited during a meeting than in a public forum, as, for example, a street corner. See White, 900 F.2d at 1425. Thus, we reaffirmed in Kindt what we said in White, that a council "does not violate the first amendment when it restricts public speakers to the subject at hand," and that a chair of a meeting may stop a speaker "if his speech becomes irrelevant or repetitious." Kindt, 67 F.3d at 270 (quoting White, 900 F.2d at 1425).

Government officials performing discretionary functions are entitled to qualified immunity where they reasonably believe their actions to be lawful. Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The interpretation and the enforcement of rules during public meetings are highly discretionary functions. See White, 900 F.2d at 1426 ("[T]he point at which speech becomes unduly repetitious or largely irrelevant is not mathematically determinable. The role of a moderator involves a great deal of discretion.").

Our law is also clear, however, that discretion is not unlimited, and that rules may not be enforced in order to suppress a particular viewpoint. See White, 900 F.2d at 1426. A majority of us remanded this case years ago because, on the basis of the pleadings alone, Norse's ejection after the salute may have been on account of a viewpoint that was contrary to that of the Council. Now, on the basis of the undisputed factual record of the videotaped proceedings, it is clear that the salute was in protest of the chair's enforcing the time limitations and in support of the disruption that had just occurred in the back of the meeting room. We agree with the district court that the ejection was not on account of any permissible expression of a point of view. Norse was protesting the good faith efforts of the Chair to enforce the Council's rules, which we have already determined were valid, in order to maintain order. See Norse I, at 178.

Accordingly, we agree with the district court that the defendants did not violate Norse's constitutional rights. In addition, even if, in retrospect, we were to hold that Norse's First Amendment rights were violated, it would not have been clear to a reasonable person in the Mayor and Council's position that the ejection was unlawful, given the difficult circumstances and threat of disorder that was presented by the disruptions.

We also agree with the district court that Norse's refusal to comply with the ejection order established probable cause for his arrest. Even if the ejection itself violated Norse's rights, there would have been no basis for a reasonable police officer to believe that Norse was defying anything other than a lawful order. The Rules of the Body provided that the Sergeant at Arms "shall carry out all orders and instructions of the Presiding Officer." Our decision in Grossman v. City of Portland, 33 F.3d 1200 (9th Cir.1994), relied upon by the district court, fully supports granting qualified immunity to arresting officers who have probable cause to believe that valid rules have been violated.

In sum, the salute had little to do with the message content of the speaker whose time had expired. Rather, it was a condemnation of the efforts of the Mayor to enforce the rules of the meeting. The Council member who called the salute to the Mayor's attention could reasonably have interpreted it as intended to support and to further the disruption that had just been occurring in the room. Officers presiding over public meetings are not required to condone conduct fostering disruption of a meeting. The district court correctly ruled that the individual defendants were entitled to immunity when they reasonably acted on the belief that disruptive behavior was occurring and was fostered by the Nazi salute.

Because the individual defendants were reacting reasonably to the specific situations that confronted them in both 2002 and 2004, and because the rules of the body they enforced were constitutionally valid, there is no basis for municipal liability. See White, 900 F.2d at 1424-25; Kindt, 67 F.3d at 271-72.

AFFIRMED.

TASHIMA, Circuit Judge, concurring in part and dissenting in part:

In a proceeding akin to summary judgment, on the date set for the commencement of a jury trial, the district court held as a matter of law that defendants were entitled to qualified immunity from liability. It held, first, that plaintiff's First Amendment rights had not been violated, and, second, even if they were, those rights were not clearly established. Two incidents are at issue in this case, one...