Norse v. City of Santa Cruz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT NORSE, 

Plaintiff-Appellant,

v.

CITY OF SANTA CRUZ; CHRISTOPHER

KROHN, individually and in his

official capacity as Mayor of the No. 07-15814

City of Santa Cruz; TIM

D.C. No.

FITZMAURICE; KEITH A. SUGAR; EMILY

REILLY; ED PORTER; SCOTT KENNEDY;  CV-02-01479-

MARK PRIMACK, individually and in RMW

their official capacities as Members OPINION

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. 

Appeal from the United States District Court

for the Northern District of California

Ronald M. Whyte, Senior District Judge, Presiding

Argued and Submitted

June 22, 2010—Pasadena, California

Filed December 15, 2010

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,

Pamela Ann Rymer, Sidney R. Thomas,

M. Margaret McKeown, William A. Fletcher,

Raymond C. Fisher, Ronald M. Gould, Richard C. Tallman,

Richard R. Clifton and Carlos T. Bea, Circuit Judges.

20067

20068 NORSE v. SANTA CRUZ

Opinion by Judge Thomas;

Concurrence by Chief Judge Kozinski

NORSE v. SANTA CRUZ 20071

COUNSEL

David J. Beauvais, Oakland, California; and Kate Wells, Law

Office of Kate Wells, Santa Cruz, California, for plaintiff-

appellant Robert Norse.

George J. Kavacevich, Atchison, Barisone & Condotti, Santa

Cruz, California, for defendants-appellees City of Santa Cruz

et al.

20072 NORSE v. SANTA CRUZ

OPINION

THOMAS, Circuit Judge:

When Robert Norse gave the Santa Cruz City Council a

silent Nazi salute, he was ejected and arrested. He sued city

officials for violating his rights under the First Amendment.

On the eve of trial, the district court sua sponte granted judg-

ment against him, holding that the city officials were entitled

to qualified immunity. Because the district court failed to pro-

vide Norse adequate notice and opportunity to be heard,

among other procedural errors, we reverse the judgment of the

district court.

I

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. App’x. 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

NORSE v. SANTA CRUZ 20073

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 par-

ties 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 other-

wise prepared for trial. In one motion in limine, Norse

objected to the City’s efforts to introduce evidence of his par-

ticipation in City Council meetings other than the 2002 and

2004 meetings discussed in the complaint. At a pretrial hear-

ing 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

1

At oral argument before the district court, the City indicated its deci-

sion not to file a motion for summary judgment was a tactical choice. The

district court noted at the commencement of the hearing that “it would

have been helpful if there had been a summary judgment motion.”

20074 NORSE v. SANTA CRUZ

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 meet-

ings 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 judg-

ment order. See LaLonde v. Cnty. of Riverside, 204 F.3d 947,

953 (9th Cir. 2000) (“The court’s pretrial order granting quali-

fied immunity amounted to a sua sponte summary judg-

ment.”). It determined that the individual defendants were

entitled to qualified immunity and that there was no indepen-

dent 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).

NORSE v. SANTA CRUZ 20075

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.

II

District courts unquestionably possess the power to enter

summary judgment sua sponte, even on the eve of trial.2 How-

ever, 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 Pro-

cessing, 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 with-

out ruling on Norse’s evidentiary objections.

A

[1] “Sua sponte grants of summary judgment are only

appropriate if the losing party 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 omit-

ted). “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).

2

Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). While the Federal

Rules of Civil Procedure have not expressly granted district courts this

power, it nonetheless derives from Federal Rule of Civil Procedure 56.

Ind. Port Comm’n v. Bethlehem Steel Corp., 702 F.2d 107, 111 (7th Cir.

1983). Effective December 1, 2010, Rule 56 will make the power explicit.

See Fed. R. Civ. P. 56(f) (explaining that the district court may grant sum-

mary judgment “for a nonmovant,” “on grounds not raised by a party,” or

“on its own”).

20076 NORSE v. SANTA CRUZ

[2] 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

[3] In this case, the district-court-imposed deadline for fil-

ing dispositive motions had passed some fifteen months

before trial. On the Thursday before the Monday trial, the dis-

trict 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

3

The local rules for the Northern District of California in effect at that

time were more stringent, requiring summary judgment motions to be

served at least 35 days before the hearing date (although allowing district

courts discretion to hear motions filed in accordance with the timeline in

the Federal rules). See Local Rule 7-2(a) (March 2007), 56-1.

4

See also Gibson v. Mayor & Council of Wilmington, 355 F.3d 215,

223 (3d Cir. 2004) (holding that the 10 day notice requirement in then-

Rule 56 governs sua sponte grants of summary judgment); Stella v. Town

of Tewksbury, Mass., 4 F.3d 53, 55 (1st Cir. 1993) (same); Fernandez-

Montes v. Allied Pilots Ass’n, 987 F.2d 278, 283 n.7 (5th Cir. 1993)

(same); Capuano v. United States, 955 F.2d 1427, 1432 n.16 (11th Cir.

1992) (same); Scottish Air Int’l, Inc. v. British Caledonian Grp., PLC, 945

F.2d 53, 55 (2d Cir. 1991) (same); U.S. Dev. Corp. v. Peoples Fed. Sav.

& Loan Ass’n, 873 F.2d 731, 735 (4th Cir. 1989); cf. Resolution Trust

Corp. v. Ruggiero, 994 F.2d 1221, 1226 (7th Cir. 1993) (holding more

generally that the conditions of Rule 56 must be satisfied).

NORSE v. SANTA CRUZ 20077

of preparation, e.g., securing affidavits, needed to oppose a

motion for summary judgment.”).

[4] 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

B

[5] Additionally, Norse did not have a “full and fair oppor-

tunity to ventilate the issues prior to the district court’s sum-

mary 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 disrupted them. In particular, Norse wanted to

present testimony about whether the 2004 whisper was audi-

ble. And he wanted to present evidence that other people act-

ing similarly to him were not ejected from the 2004 meeting.

He explained that he had not been able to prepare deposition

testimony or otherwise create a record in time for the hearing

but was prepared to call witnesses at trial concerning these

issues.

[6] The district court rejected Norse’s requests and did not

5

We are mindful that the 10-day requirement specified in Rule 56 will

be removed in December 2010. The revised rule does not establish a spe-

cific time requirement unless “set by local rule . . . or court order[ ],” but

it requires a district court contemplating sua sponte judgment to provide

“notice and a reasonable time to respond.” We need not decide what effect

the court’s order or the Northern District local rules would have in the

absence of a specific national rule. Nor do we need to decide whether the

notice would have been “reasonable” under the revised rule. In all cases,

however, district courts should exercise special care in providing notice

when contemplating granting summary judgment sua sponte on the eve of

trial after the dispositive motion deadline has passed.

20078 NORSE v. SANTA CRUZ

permit him the time to compile evidence for the court. Norse

received neither the 10-days notice nor a full and fair opportu-

nity to ventilate the issues, so we must reverse the district

court’s grant of summary judgment. See United States v.

Grayson, 879 F.2d 620, 625 (9th Cir. 1989).

C

[7] Before ordering summary judgment in a case, a district

court must not only provide the parties with notice and an

opportunity to respond to adverse arguments, it must also rule

on evidentiary objections that are material to its ruling. See

Sanchez v. Aerovias De Mexico, S.A. De C.V., 590 F.3d 1027,

1029 (9th Cir. 2010) (acknowledging this rule, but noting it

is subject to harmless error analysis). In this case, the district

court failed to rule on Norse’s evidentiary objections material

to its ruling.

Rule 56 requires the parties to set out facts they will be able

to prove at trial. While the evidence presented at the summary

judgment stage does not yet need to be in a form that would

be admissible at trial, the proponent must set out facts that it

will be able to prove through admissible evidence. See Fed.

R. Civ. P. 56(e) (“A supporting or opposing affidavit must be

made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant is competent

to testify on the matters stated.”); Celotex Corp., 477 U.S. at

324. This requirement is no less applicable where the district

court’s summary judgment is granted sua sponte.

Norse had stated three relevant evidentiary objections.

First, he filed a motion in limine, seeking to exclude all evi-

dence related to all incidents involving him at city council

meetings—other than the 2002 and 2004 meetings—as irrele-

vant, prejudicial, and improper character evidence. Second, he

objected to the City’s attempt to introduce evidence of some

of these incidents via written minutes as double hearsay. And

third, he objected that the videos did not accurately portray

NORSE v. SANTA CRUZ 20079

the meetings because they were only excerpts. The district

court failed to issue a final ruling on any of these objections.6

In fact, the court considered video evidence not only of the

2002 and 2004 meetings but also of what happened at other

meetings.

[8] The district court’s failure to rule on Norse’s evidenti-

ary objections contributed to a greater problem that we face

in this case, which is that we do not know what evidence to

consider on appeal. The parties did not file any affidavits,

depositions, answers to interrogatories, or any other material

after the district court scheduled the qualified immunity hear-

ing. We know from the minutes of the pretrial hearing and the

qualified immunity hearing that the City gave the district

court two DVDs that contained different video recordings of

the 2002 and 2004 meetings, as well as excerpts from untold

other meetings, and copies of the City Council Rules of Deco-

rum in effect during the 2002 and 2004 meetings. But it is

also clear that the district court did not decide which portions

of the DVDs were admissible, leaving that question for later

resolution. The parties were (and continue to be) confused on

precisely what constitutes the actual record and dispute what

evidence we should actually consider. Because the record on

appeal is inadequate, we are unable to engage in meaningful

appellate review. See Dikeman v. Nat’l Educators, Inc., 81

F.3d 949, 954 (10th Cir. 1996) (concluding that court of

appeals is unable to review an issue if the record is not ade-

quate); Hill v. City of New York, 45 F.3d 653, 663 (2d Cir.

1995) (remanding issue of qualified immunity when appellate

record was inadequate to assess the defense).

6

The district court stated that the parties agreed that the videotapes “de-

pict what occurred at the meetings.” But Norse’s objection was that they

were incomplete, and therefore did not accurately depict what occurred at

the meetings. Whether or not this objection had merit as an evidentiary

matter, the district court was required to rule on it.

20080 NORSE v. SANTA CRUZ

D

Most procedural Rule 56 errors are subject to harmless-

error analysis. See, e.g., Kistner v. Califano, 579 F.2d 1004,

1006 (6th Cir. 1978) (per curiam) (discussing timing of notice

and noting that the error is waivable). The error here is not

harmless, though, because we do not know what evidence

Norse would have presented if he had been afforded adequate

notice and opportunity to present his case. As we do not know

what admissible evidence forms the record, we cannot con-

duct an independent review of the record to see whether genu-

ine issues of material fact exist.

[9] The district court apparently relied on the videos of the

council that were submitted to it as a basis for its decision.7

However, there are genuine issues of material fact apparent

from the recordings, which would entitle Norse to a trial on

the merits.8 A mayor’s entitlement to qualified immunity for

ejecting a person from a city council meeting “depends on

whether a reasonable person in his position, acting on his

information and motivated by his purpose, would have known

that ejecting [the attendee] violated his clearly established

rights.” Hansen v. Bennett, 948 F.2d 397, 400 (7th Cir. 1991)

(emphasis added); see also Monteiro v. City of Elizabeth, 436

F.3d 397, 404 (3d Cir. 2006) (“In cases in which a constitu-

tional violation depends on evidence of a specific intent, it

can never be objectively reasonable for a government official

to act with the intent that is prohibited by law.” (internal quo-

7

In its order directing the parties to appear to argue qualified immunity,

the court stated that: “In this case, there are video tapes of the incidents

in question and both parties have agreed that they are admissible and pre-

sumably agree they accurately depict what occurred. Therefore, the facts

appear undisputed.”

8

As indicated earlier, we are uncertain as to what portions of the DVDs

the court considered in making its ruling. For the purposes of this discus-

sion, we assume that some portions of the DVDs submitted to us con-

tained the same footage of the two council meetings as viewed by the

district court.

NORSE v. SANTA CRUZ 20081

tation marks omitted)). The DVDs show triable issues of fact

as to whether Norse was impermissibly ejected because of his

viewpoint rather than his alleged disruptiveness.

As the Seventh Circuit wrote in a very similar case,

[T]he defendants argue that their appeal cannot pre-

sent a factual question because the record includes a

tape recording and transcript of the city council

meeting. As a result, the parties do not disagree

about what [the attendee] said or did, what [the

Mayor] said or did, or what generally transpired at

the meeting. Be that as it may, the record does not

enable us to determine the factual issue of [the

Mayor]’s intent; we would need a transcript of his

thoughts for that. In so holding, we are mindful that

“[s]ummary judgment is not defeated merely

because issues of motive or intent are involved.”

Jackson v. Elrod, 881 F.2d [441,] 443 [(7th Cir.

1989)]. We do not hold that [the Mayor]’s intent is

metaphysically unknowable, but that there is a genu-

ine factual dispute on the question.

Hansen, 948 F.2d at 400 (fifth alteration in Hansen).

[10] Of course, different viewers of the tape may draw dif-

ferent conclusions, and that is precisely why summary judg-

ment was inappropriate here—at the summary judgment

stage, the non-moving party is entitled to have permissible

inferences drawn in his or her favor. Here, applying our tradi-

tional summary judgment analysis, we conclude there are

genuine issues of material fact present on the video that pre-

clude summary judgment.9

9

We do recognize that the proximity of trial may have led the district

court to believe that summary judgment rules did not apply, and we are

aware that the Supreme Court has “repeatedly . . . stressed the importance

of resolving immunity questions at the earliest possible stage in litigation.”

20082 NORSE v. SANTA CRUZ

III

The City argues, in the alternative, that it is entitled to judg-

ment as a matter of law, either on the pleadings or based on

other undisputed facts. We may, of course, affirm the district

court on any basis supported by the record. However, we must

reject the City’s arguments, except as to one defendant.

A

The City contends that only certain portions of its meetings

are limited public forums and that no members of the public

have any First Amendment rights at all once the public com-

ment period has concluded. The City cites no support for this

proposition, and there is none.

[11] In City of Norwalk, we held that city council meet-

ings, once open to public participation, are limited public

forums. 900 F.2d at 1425. A council can regulate not only the

time, place, and manner of speech in a limited public forum,

but also the content of speech—as long as content-based regu-

lations are viewpoint neutral and enforced that way. Id.; see

also Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266,

270-71 (9th Cir. 1995) (“[L]imitations on speech at [city

council] meetings must be reasonable and viewpoint neutral

. . . .”); accord Steinburg v. Chesterfield Cnty. Planning

Comm’n, 527 F.3d 377, 385 (4th Cir. 2008); Eichenlaub v.

Twp. of Ind., 385 F.3d 274, 281 (3d Cir. 2004).

[12] What a city council may not do is, in effect, close an

open meeting by declaring that the public has no First

Hunter v. Bryant, 502 U.S. 224, 227 (1991). This opinion is not intended

to limit the times at which a district court might address the question of

qualified immunity, sua sponte or otherwise. But, whether the district

court is ruling before trial or after trial, it must carefully consider its role

in construing evidence and the applicable law, abide by the normal proce-

dural requirements associated with that stage of litigation, and ensure that

the parties have had a full and fair opportunity to be heard.

NORSE v. SANTA CRUZ 20083

Amendment right whatsoever once the public comment

period has closed. As we explained in Norwalk, the entire city

council meeting held in public is a limited public forum. But

the fact that a city may impose reasonable time limitations on

speech does not mean it can transform the nature of the forum

by doing so, much less extinguish all First Amendment rights.

A limited public forum is a limited public forum. Perhaps

nothing more, but certainly nothing less. The City’s theory

would turn the entire concept on its head.

[13] Thus, even though we can tell from the face of the

amended complaint that Norse’s provocative gesture was

made after the public comment period closed, Norse still had

a First Amendment right to be free from viewpoint discrimi-

nation at that time.10

The City’s argument proves the danger of its theory. The

City contended at oral argument before us that, because the

public had no First Amendment rights after the public com-

ment period had closed, the Council could legitimately eject

members of the public who made a “thumbs down” gesture,

but allow members of the public who made a “thumbs up”

gesture to remain.11

10

We note that we have been unable to find a single First Amendment

case where a person has the right to be in a place but has no First Amend-

ment rights once there. Rather, the First Amendment test itself accounts

for the nature of the forum and, at its most restrictive, only permits view-

point neutral restrictions that are “reasonable in light of the purpose served

by the forum.” See Good News Club v. Milford Cent. Sch., 533 U.S. 98,

107 (2001) (internal quotation marks omitted); Perry Educ. Ass’n v. Perry

Local Educators’ Ass’n, 460 U.S. 37, 49 (1983); see also Morse v. Freder-

ick, 551 U.S. 393, 406 n.2 (2007) (“[S]tudent First Amendment rights are

applied in light of the special characteristics of the school environment.”

(internal quotation marks omitted)); Pell v. Procunier, 417 U.S. 817, 822

(1974) (“[A] prison inmate retains those First Amendment rights that are

not inconsistent with his status as a prisoner or with the legitimate peno-

logical objectives of the corrections system.”).

11

When queried at oral argument whether that action would constitute

classic viewpoint discrimination, the City responded that it was “just

human nature.”

20084 NORSE v. SANTA CRUZ

We decline the City’s invitation to rewrite First Amend-

ment law to extinguish the rights that citizens have when they

attend public meetings.

B

We also decline the City’s invitation to rewrite the rule

announced in Norwalk. 900 F.2d at 1424-26. There, we held

that a city’s “Rules of Decorum” are not facially over-broad

where they only permit a presiding officer to eject an attendee

for actually disturbing or impeding a meeting. Id.

In this case, the City argues that cities may define “distur-

bance” in any way they choose. Specifically, the City argues

that it has defined any violation of its decorum rules to be a

“disturbance.” Therefore, it reasons, Norwalk permits the City

to eject anyone for violation of the City’s rules—rules that

were only held to be facially valid to the extent that they

require a person actually to disturb a meeting before being

ejected. We must respectfully reject the City’s attempt to

engage us in doublespeak. Actual disruption means actual dis-

ruption. It does not mean constructive disruption, technical

disruption, virtual disruption, nunc pro tunc disruption, or

imaginary disruption. The City cannot define disruption so as

to include non-disruption to invoke the aid of Norwalk.

C

[14] The city officials are not entitled to absolute immu-

nity. Local legislators are absolutely immune from liability

under § 1983 for their legislative acts. See Bogan v. Scott-

Harris, 523 U.S. 44, 49 (1998). But “not all governmental

acts by . . . a local legislature[ ] are necessarily legislative in

nature.” Cinevision Corp. v. City of Burbank, 745 F.2d 560,

580 (9th Cir. 1984). “Whether an act is legislative turns on the

nature of the act, rather than on the motive or intent of the

official performing it.” Bogan, 523 U.S. at 54. Thus, we must

determine whether the actions of the Council members, when

NORSE v. SANTA CRUZ 20085

“stripped of all considerations of intent and motive,” were

legislative rather than administrative or executive. Id. at 55.

[15] In this Circuit, we have developed a four-part test to

determine whether an action is legislative in nature. We con-

sider “(1) whether the act involves ad hoc decisionmaking, or

the formulation of policy; (2) whether the act applies to a few

individuals, or to the public at large; (3) whether the act is for-

mally legislative in character; and (4) whether it bears all the

hallmarks of traditional legislation.” Kaahumanu v. Cnty. of

Maui, 315 F.3d 1215, 1220 (9th Cir. 2003) (internal quotation

marks omitted). “Whether an act is ad hoc can depend on

whether it is aimed at a few people or many, and whether an

act bears all the hallmarks of traditional legislation can

depend on whether it is ad hoc.” Id. at 1220 n.4.

[16] In this case, we are dealing with city officials who

ejected one individual from City Council meetings. Sepa-

rately, and with regard to his argument for municipal liability,

Norse argues that the officials were formulating policy. We

need not determine whether the ejections “effectuate[d] poli-

cy,” however, see id. at 1220, because the second, third, and

fourth factors clearly point to this being an administrative

rather than legislative act. Thus, Krohn, Kennedy, and Fitz-

maurice are not entitled to absolute immunity for their part in

removing Norse from the meetings. Although the record is

incomplete, it appears that in both 2002 and 2004 Norse was

singled out for expulsion and arrest. Mayors Krohn and Ken-

nedy did not take any formal legislative action, but rather

ordered Norse out of the room. And both expulsions lacked

the hallmarks of the legislative process. With respect to the

2002 arrest, Krohn ordered Norse to leave on Fitzmaurice’s

motion without any debate. The motion was predicated on the

“dignity” of the council rather than the council’s performance

of its obligations to the citizens of Santa Cruz. See id. at 1223.

And with respect to the 2004 arrest, the record does not reveal

a motion based even on dignity, let alone a legislative deci-

sionmaking process. Thus the decisions to expel Norse were

20086 NORSE v. SANTA CRUZ

administrative, not legislative, so the defendants are not enti-

tled to absolute immunity. See Vacca v. Barletta, 933 F.2d 31

(1st Cir. 1991) (holding that the Chair of a school committee

was not absolutely immune from suit over his actions in

removing another committee member from a meeting).

D

[17] The district court dismissed the case against Santa

Cruz based on its determination that Norse’s constitutional

rights were not violated. The City urges us to affirm this dis-

missal on the basis that Norse failed to allege any facts that

could support municipal liability under Monell v. Department

of Social Services, 436 U.S. 658 (1978). Norse argues that

municipalities can be liable under § 1983 for single decisions

taken by municipal policymakers. But the question of whether

the two ejections constituted an act or acts of official govern-

ment policy is a question of fact appropriately decided on a

more fully-developed record. The City is not entitled to sum-

mary judgment on this question.

E

As against officer Baker, Norse alleges claims of false

arrest and excessive force. The City argues that Baker is

immune from suit if reasonable officers in his position could

have disagreed on the issue of probable cause. We agree with

the City. The existence of probable cause is dispositive as to

false arrest and excessive force claims.

[18] “To prevail on [a] § 1983 claim for false arrest . . . [a

plaintiff must] demonstrate that there was no probable cause

to arrest him.” Cabrera v. City of Huntington Park, 159 F.3d

374, 380 (9th Cir. 1998) (per curiam). Moreover, a govern-

ment official is entitled to qualified immunity on a false arrest

claim if a reasonable officer in his position could have

believed that probable cause existed. See Ramirez v. City of

Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009). While

NORSE v. SANTA CRUZ 20087

Norse alleges in his pleadings that there was no probable

cause to arrest him in 2002 or 2004, he nonetheless alleges

facts that could have led a reasonable officer to believe that

probable cause existed for his arrest. In both 2002 and 2004,

Norse actually spoke verbally, in violation of the Rules of

Decorum, in response to Council members’ attempts to eject

him from the Council chambers. Based on these facts, a rea-

sonable officer could have believed that probable cause

existed to arrest Norse for violation of California Penal Code

§ 403, disturbance of a public assembly or meeting. There-

fore, Baker is entitled to judgment on the false-arrest claim.

Norse also alleges he was subject to excessive force. An

excessive-force claim that arises in the context of an arrest is

properly characterized as one invoking the protections of the

Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394

(1989). “To determine if a Fourth Amendment violation has

occurred, we must balance the extent of the intrusion on the

individual’s Fourth Amendment rights against the govern-

ment’s interests to determine whether the officer’s conduct

was objectively reasonable based on the totality of the cir-

cumstances.” Espinosa v. City & Cnty. of S.F., 598 F.3d 528,

537 (9th Cir. 2010). The only force alleged in the complaint

was Baker’s order that Norse place his hands behind his back

at the 2002 meeting. Even though Norse was being arrested

for, at most, a minor misdemeanor offense, we cannot say that

a reasonable officer in Baker’s position would have known

that this limited use of force was unreasonable: Norse had

refused to leave the meeting of his own accord, a fact also

alleged in the complaint, and a reasonable officer could have

believed that probable cause existed for the arrest. Therefore,

judgment must be entered in favor of Baker on the claims

asserted against him.

IV

For the foregoing reasons, we reverse the dismissal of

Norse’s § 1983 claim as to his First Amendment claims. We

20088 NORSE v. SANTA CRUZ

affirm the dismissal of Norse’s claims against Baker. We

remand with instructions for the district court to rule on

Norse’s pending motion in limine to exclude evidence of

Council meetings other than the 2002 and 2004 meetings

mentioned in his complaint, and to hold the trial that it had

originally scheduled for March 26, 2007. In accordance with

our precedent, the district court may entertain a post-trial

motion for judgment as a matter of law on the issue of quali-

fied immunity after the facts are resolved at trial. Tortu v. Las

Vegas Metro. Police Dep’t, 556 F.3d 1075, 1083 (9th Cir.

2009).

We need not, and do not, reach any other issues urged by

the parties. Each party shall bear its own costs on appeal.

AFFIRMED IN PART; REVERSED IN PART;

REMANDED WITH INSTRUCTIONS.

Chief Judge KOZINSKI, with whom Judge REINHARDT

joins, concurring:

I join Judge Thomas’s opinion because it’s clearly right. I

write only to observe that, even after the procedural irregulari-

ties that deprived Norse an opportunity to present evidence,

it’s clear that the council members aren’t entitled to qualified

immunity. In the Age of YouTube, there’s no need to take my

word for it: There is a video of the incident that I’m “happy

to allow . . . to speak for itself.” Scott v. Harris, 550 U.S. 372,

378 n.5 (2007); see http://www.youtube.com/watch?v=

ZOssHWB6WBI (last visited Nov. 16, 2010). This video

(also found in the record) clearly shows that Norse’s sieg heil

was momentary and casual, causing no disruption whatsoever.

It would have remained entirely unnoticed, had a city council-

man not interrupted the proceedings to take umbrage and

insist that Norse be cast out of the meeting. Councilman Fitz-

maurice clearly wants Norse expelled because the “Nazi

NORSE v. SANTA CRUZ 20089

salute” is “against the dignity of this body and the decorum

of this body” and not because of any disruption. But, unlike

der Führer, government officials in America occasionally

must tolerate offensive or irritating speech. See Cohen v. Cal-

ifornia, 403 U.S. 15 (1971); Duran v. City of Douglas, Ariz.,

904 F.2d 1372, 1378 (9th Cir. 1990).

The Supreme Court long ago explained that “in our system,

undifferentiated fear or apprehension of disturbance is not

enough to overcome the right to freedom of expression.” Tin-

ker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503, 508

(1969). Even in a limited public forum like a city council

meeting, the First Amendment tightly constrains the govern-

ment’s power; speakers may be removed only if they are actu-

ally disruptive.

We’ve said so twice. In White v. City of Norwalk, 900 F.2d

1421 (9th Cir. 1990), we explained that speech must “dis-

rupt[,] disturb[ ] or otherwise impede[ ] the orderly conduct of

the Council meeting” before the speaker could be removed.

Id. at 1426. And in Kindt v. Santa Monica Rent Control Bd.,

67 F.3d 266 (9th Cir. 1995), we upheld a spectator’s ejection

from a public meeting only because he was “disrupting the

proceedings by yelling and trying to speak when it was not

time for” discussion. Id. at 271. Had he been given a chance,

Norse could no doubt have presented lots more evidence that

he never disrupted the Santa Cruz council meeting, but what

would have been the point? The video speaks for itself: Norse

raises his hand in a brief, silent protest of the mayor’s treat-

ment of another speaker. The mayor ignores Norse’s fleeting

gesture until Councilman Fitzmaurice throws a hissy fit.

“Listeners’ reaction to speech is not a content-neutral basis

for regulation. . . . Speech cannot be . . . punished or banned[ ]

simply because it might offend a hostile” member of the Santa

Cruz City Council. Forsyth Cnty., Ga. v. Nationalist Move-

ment, 505 U.S. 123, 134-35 (1992). The council members

should have known that the government may never suppress

20090 NORSE v. SANTA CRUZ

viewpoints it doesn’t like. See Rosenberger v. Rector & Visi-

tors of the Univ. of Va., 515 U.S. 819, 829 (1995). Though

defendants point to Norse’s reaction to Councilman Fitzmau-

rice as the “disruption” that warranted carting him off to jail,

Norse’s calm assertion of his constitutional rights was not the

least bit disruptive. The First Amendment would be meaning-

less if Councilman Fitzmaurice’s petty pique justified Norse’s

arrest and removal.

Even viewing the facts most favorably to the city council

members, their behavior amounts to classic viewpoint dis-

crimination for which they’re not entitled to qualified immu-

nity. And that’s what the district court should have held when

it set about resolving qualified immunity as a matter of law.

If it was going to take it upon itself to grant summary judg-

ment to anyone on that issue, it should have been to Norse.

On remand, the district court can set things right by holding,

as a matter of law, that the city council members are not enti-

tled to qualified immunity, and proceeding to assess damages.