Norse v. City of Santa Cruz

Citations: 586 F.3d 697; 2009 U.S. App. LEXIS 24123; 2009 WL 3582694Docket: 07-15814

Court: Court of Appeals for the Ninth Circuit; November 2, 2009; Federal Appellate Court

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Robert Norse filed a 42 U.S.C. § 1983 action against the City of Santa Cruz and its officials, claiming violations of his First Amendment rights after being ejected from two City Council meetings in 2002 and 2004. The Ninth Circuit had previously upheld the Council's rules permitting removal of disruptive individuals. In this case, the court reversed a district court dismissal, stating the need to assess the reasonableness of the Mayor's actions during Norse's ejections. The district court later ruled that the Mayor acted reasonably, as Norse's conduct was disruptive. Video evidence confirmed that during the 2004 meeting, Norse engaged in a disruptive protest. In the 2002 meeting, his Nazi salute was directed at the presiding officer in response to a ruling that a speaker's time had expired, prompting the Mayor's attention and subsequent ejection. The court noted that the Mayor was managing prior disruptions and only became aware of Norse's gesture after it was pointed out by another council member.

The Mayor was aware that two Council members had previously condemned Norse's Nazi gestures, suggesting that Norse intended his salute at the March 12, 2002 meeting to be disruptive. Norse had also started to verbally challenge comments made by Fitzmaurice. Given these circumstances, the district court deemed the Mayor's decision to evict Norse from the meeting reasonable, granting qualified immunity to the Mayor and Council members. Legal precedent allows presiding officers significant discretion in maintaining order during meetings, as established in Kindt v. Santa Monica Rent Control Board, which affirmed that First Amendment rights are more restricted in meetings than in public forums. It is established that a council can limit speakers to relevant topics and that moderators have discretion in determining when speech becomes irrelevant or repetitive. However, this discretion must not be used to suppress specific viewpoints. 

Previously, the case was remanded due to concerns that Norse's ejection might have been based on his controversial viewpoint. However, the factual record now indicates that Norse's salute was a protest against the Chair's enforcement of time limits and support for ongoing disruptions. The district court concluded that Norse's ejection did not violate his constitutional rights, as he was protesting legitimate rule enforcement. Even if a violation occurred, it was not clear to a reasonable person that the ejection was unlawful, given the context of potential disorder. Norse's refusal to comply with the eviction order constituted probable cause for his arrest, supported by the rules stating that the Sergeant at Arms must follow the Presiding Officer's directives. The decision in Grossman v. City of Portland reinforces the idea that arresting officers are granted qualified immunity when they have probable cause to believe valid rules are being violated. Ultimately, Norse's salute was more a condemnation of the Mayor's rule enforcement than a legitimate form of expression.

A Council member interpreted a Nazi salute directed at the Mayor as supporting ongoing disruptions in a public meeting. Officers at public meetings need not tolerate disruptive conduct, and the district court ruled that the individual defendants were entitled to immunity for their reasonable belief that such behavior was occurring. The court affirmed that there was no municipal liability since the individual defendants acted within the bounds of valid constitutional rules. 

Judge Tashima, while concurring in part, dissented regarding the 2002 incident, asserting that Norse's ejection from that meeting violated his constitutional rights. Tashima acknowledged that Norse's conduct in 2004 was disruptive but argued that the 2002 incident did not meet this criterion, as Norse's silent salute was brief and did not interfere with the meeting. Furthermore, the Council had permitted silent visual expressions, and at the time, the Mayor was unaware of Norse's salute until it was pointed out. Tashima contended that the ejection was unjustified and derived from disagreement with Norse's viewpoint rather than legitimate concerns about disruption.

The district court's ruling acknowledged that the Mayor faced a situation where a council member was offended, highlighting the Council's hostility toward Norse's viewpoints. The Mayor was aware that two Council members had previously expressed their disdain for Norse's Nazi gestures. The court noted that Norse had been warned about the offensiveness of his gesture and the possibility of removal for repeating such conduct. There is substantial evidence suggesting Norse's removal stemmed from his viewpoint, as Council members objected to being associated with Nazi-like actions. The majority's argument that Norse's salute supported a disruption was countered by the principle that speech cannot be suppressed due to others' reactions, as established in Tinker v. Des Moines. Furthermore, Norse's intent was deemed irrelevant as long as his speech complied with Council rules. The district court erred in concluding that the Mayor and Council did not violate Norse's First Amendment rights, as this interpretation required drawing unfavorable inferences against Norse. Even if a violation were acknowledged, the majority incorrectly asserted that it was not clear to the Mayor and Council that their actions were unlawful. Established case law prior to the 2002 meeting indicated that speech in municipal meetings could only be suppressed if it was actually disruptive. Supreme Court jurisprudence supports that speech in limited public forums cannot be prohibited simply because officials disapprove of the speaker’s views. The majority's approach misapplied the legal standard by not favoring reasonable inferences for Norse, agreeing with the district court that his ejection wasn't due to permissible expression.

The majority opinion dismisses the inference that the Mayor acted to enforce the Council's condemnation of Norse's Nazi salute and agrees with the district court that Norse intended his gesture to disrupt the meeting. It suggests that the Council member who alerted the Mayor could reasonably interpret the salute as contributing to ongoing disruptions. The majority concludes that the Mayor and Council's actions were not unlawful due to perceived difficult circumstances and a threat of disorder. However, this interpretation is contested, as the video evidence suggests the meeting was not particularly disorderly, and the claims of disruption should be treated as factual disputes for a jury to resolve.

Norse's First Amendment rights were allegedly violated when he was ejected for silently protesting, as the Mayor and Council had previously threatened his removal for such actions. The dissent argues that the threat of disruption does not justify infringement on First Amendment rights, citing established legal precedent that fear of disturbance cannot override free expression. The dissent contends that the Mayor and Council acted to suppress speech they deemed offensive, warranting a reversal of the qualified immunity granted to them. 

Additionally, the dissent agrees with the majority regarding the reasonableness of the police officer's actions, which were based on the Mayor's orders. However, it criticizes the district court's reliance on video evidence without witness testimony or proper factual findings, emphasizing that the reasonable inferences drawn from this evidence remain contested. The dissent highlights procedural irregularities in the district court’s handling of the qualified immunity issue, noting that the majority fails to address these procedural concerns.