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

City of Santa Cruz; TIM No. 07-15814

FITZMAURICE; KEITH A. SUGAR;

EMILY REILLY; ED PORTER; SCOTT  D.C. No.

CV-02-01479-RMW

KENNEDY; MARK PRIMACK,

individually and in their official OPINION

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.



Appeal from the United States District Court

for the Northern District of California

Ronald M. Whyte, District Judge, Presiding

Argued and Submitted

June 12, 2009—San Francisco, California

Filed November 3, 2009

Before: Mary M. Schroeder, Diarmuid F. O’Scannlain and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Schroeder;

Partial Concurrence and Partial Dissent by Judge Tashima

14795

NORSE v. CITY OF SANTA CRUZ 14797

COUNSEL

David Beauvais, Oakland, California, for the plaintiff-

appellant.

14798 NORSE v. CITY OF SANTA CRUZ

Kathleen Wells, Santa Cruz, California, for the plaintiff-

appellant.

George J. Kovacevich, Santa Cruz, California, for the

defendants-appellees.

OPINION

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 In a 2004 unpublished, non-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, No. 02-16446,

2004 WL 2757528 (9th Cir. Dec. 3, 2004) (“Norse I”), at *1.

The rules authorize removal of “any person who interrupts

and refuses to keep quiet . . . or otherwise disrupts the pro-

ceedings 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 dis-

trict 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 ejec-

tion after Norse gave a Nazi salute to protest the Mayor’s

administration of the Council’s rules. Id. at *2.

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

NORSE v. CITY OF SANTA CRUZ 14799

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 epi-

sodes 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 vid-

eotape 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 rul-

ing.

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

14800 NORSE v. CITY OF SANTA CRUZ

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 rea-

sonable, and that the Mayor and council members were all

entitled to qualified immunity.

[1] 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).

[2] Government officials performing discretionary func-

tions are entitled to qualified immunity where they reasonably

believe their actions to be lawful. Saucier v. Katz, 533 U.S.

194, 202 (2001). The interpretation and the enforcement of

rules during public meetings are highly discretionary func-

tions. See White, 900 F.2d at 1426 (“[T]he point at which

speech becomes unduly repetitious or largely irrelevant is not

NORSE v. CITY OF SANTA CRUZ 14801

mathematically determinable. The role of a moderator

involves a great deal of discretion.”).

[3] Our law is also clear, however, that discretion is not

unlimited, and that rules may not be enforced in order to sup-

press 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 limi-

tations 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, 2004 WL 2757528, at *1.

[4] 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 posi-

tion that the ejection was unlawful, given the difficult circum-

stances and threat of disorder that was presented by the

disruptions.

[5] 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 Ser-

geant 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

14802 NORSE v. CITY OF SANTA CRUZ

district court, fully supports granting qualified immunity to

arresting officers who have probable cause to believe that

valid rules have been violated.

[6] In sum, the salute had little to do with the message con-

tent 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 dis-

ruption 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.

[7] Because the individual defendants were reacting reason-

ably 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 in 2002 and the other

NORSE v. CITY OF SANTA CRUZ 14803

in 2004, both involving plaintiff Norse’s ejection from meet-

ings of the Santa Cruz City Council. I agree that Norse’s con-

duct at the 2004 meeting, as a matter of uncontroverted fact,

was disruptive. I therefore concur in the portion of the major-

ity opinion affirming the district court’s dismissal of that claim.1

I disagree, however, with the majority’s holding “that the

defendants did not violate Norse’s constitutional rights” in

ejecting him from the 2002 Council meeting. Maj. op. at

14801 (agreeing with the district court so holding).

While it is clear under our case law that local public offi-

cials conducting public meetings can restrict speech at such

meetings according to subject matter, duration, and method,

see Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 272

(9th Cir. 1995); White v. City of Norwalk, 900 F.2d 1421,

1425-26 (9th Cir. 1990), it is equally clear that public officials

may not restrict speech according to the viewpoint of the

speaker, see id. at 1425. In order to avoid any constitutional

problems, in a prior appeal, we construed the rules of the

Santa Cruz City Council “to proscribe only disruptive con-

duct.” See Norse v. City of Santa Cruz, 118 F. App’x 177, 178

(9th Cir. 2004) (“Norse I”).2 That limitation on what conduct

the Council rules proscribe is the law of the case. Yet, 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.3

1

I also agree with the majority that, whether or not there was probable

cause for Norse’s arrest at the 2002 meeting, the police officer (who was

acting as Sergeant at Arms for the Council meeting), acted reasonably in

carrying out the direct orders of the Presiding Officer (i.e., the Mayor) in

ejecting Norse from the meeting.

2

This narrowing construction was necessary because the Council rules

authorized, inter alia, the “removal . . . of any person who uses ‘language

tending to bring the council or any council member into contempt . . . .’ ”

Norse I, 118 F. App’x at 178 (quoting the Council rules).

3

The district court’s qualified immunity ruling was based primarily on

viewing a video, which we have also viewed. No witnesses were called or

14804 NORSE v. CITY OF SANTA CRUZ

It is uncontroverted that Norse’s Nazi salute lasted only a

second or two and, in the course of rendering that salute,

Norse uttered no word or other sound — he was silent. It is

also undisputed that the Council permits silent, visual speech,

such as the displaying of signs at its meetings, so long as such

speech does not block the view of or otherwise interfere with

other meeting attendees. Thus, the salute comported with the

Council’s rule permitting silent, non-verbal messages at the

Council meeting. That it was not, itself, disruptive, is evi-

denced by the fact that the Mayor was not even aware of it —

he continued with his reading of announcements — until

Councilmember Fitzmaurice called his attention to it. And, as

the video demonstrates, no member of the audience reacted to

Norse’s silent salute. Drawing all reasonable inferences in

Norse’s favor, as we must, I submit that there is no way to

conclude that, as a matter of law, Norse’s conduct in render-

ing a fleeting, silent Nazi salute was disruptive.

In fact, a close reading of the majority opinion shows that

it does not hold that Norse’s conduct was, itself, disruptive.

Thus, there was no justification for the Mayor to eject Norse

from the meeting for being disruptive. On the contrary, the

record clearly supports the inference that Norse was ejected

from the 2002 meeting because the Mayor and Council dis-

agreed with (and intensely and overtly disliked) his view-

point. The portion of the district court’s ruling quoted by the

majority admits as much. First, the district court noted that the

Mayor was “suddenly faced with a meeting that had been

interrupted by an offended council member.”4 Maj. op. at

14799 (emphasis added). It then notes the Council’s hostility

subject to cross-examination. The district court purported to make no find-

ings of fact, something it was not authorized to do because a jury trial had

been demanded and was about to commence. Thus, the evidence on which

the district court’s and the majority’s ruling were based is uncontroverted

(and untested). What remains controverted, however, are the reasonable

inferences that a fact finder can draw from this evidence.

4

Note that the “interruption,” or disruption, is caused, not by Norse, but

by the council member.

NORSE v. CITY OF SANTA CRUZ 14805

to Norse’s viewpoint. “[The Mayor] also knew that two Coun-

cil members in the previous months had expressed to Norse

their abhorrence of his Nazi gestures . . . .” Id. Further, as the

district court also noted, when Norse made his Nazi salute

gesture at past Council meetings, he was warned that Council

members found the gesture to be offensive and that he would

be removed from the meeting if he engaged in such conduct

again. Thus, there is ample evidence in the record to support

a finding that Norse was removed because of his viewpoint —

because Council members detested being characterized as act-

ing Nazi-like.

The majority attempts to elide the point by sidetracking the

issue. It says that Norse’s action was “in support of the dis-

ruption that had just occurred . . . .” Maj. op. at 14801. That

the Mayor was acting “in good faith” to “enforce the Council

rules . . . .” Id. That Norse’s Nazi salute “could reasonably

have [been] interpreted [ ] as intended to support and to fur-

ther the disruption that had just been occurring the room.” Id.

at 14802 But Norse’s speech cannot be suppressed because of

the actions of others. See Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 508 (1969) (holding that black arm-

bands worn by high school students in protest of the Vietnam

war were not disruptive, and that they could not be suppressed

on account of the fact that the armbands might cause others

to react in disruptive ways). Nor is Norse’s intent relevant, so

long as his speech comports with the Council’s rules, as it did.

In sum, the district court erred in holding as a matter of law

that the Mayor and Council’s action in ejecting Norse from

the 2002 meeting for rendering a silent Nazi salute did not

violate his First Amendment rights. It could do so only by

drawing all inferences against Norse, as the majority does.

Alternatively, the majority further holds that “even if, in

retrospect, we were to hold that Norse’s First Amendment

rights were violated, it would not have been clear to a reason-

able person in the Mayor and Council’s position that the ejec-

tion was unlawful . . . .” Maj. op. at 14801. This holding also

14806 NORSE v. CITY OF SANTA CRUZ

is just plain wrong. Our case law had clearly established by

1990, twelve years before the 2002 Council meeting, that

speech at a municipal meeting could not be suppressed unless

it was actually disruptive. See White, 900 F. 2d at 1424. That

this was the law of the circuit was confirmed five years later,

in 1995, in Kindt, 67 F.3d at 270. Just as importantly, our

First Amendment jurisprudence on the limited public fora of

municipal meetings is in accord with decades-old, clearly-

established Supreme Court case law that speech in such fora

cannot be “prohibited ‘ “merely because public officials dis-

approve the speaker’s view.” ’ ” U.S. Postal Serv. v. Council

of Greenburgh Civic Ass’ns, 453 U.S. 114, 132 (1981) (quot-

ing Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530,

536 (1980) (quoting Niemotko v. Maryland, 340 U.S. 268,

282 (1951) (Frankfurter, J., concurring in result))); see also

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.

37, 46 (1983) (noting that the State may regulate speech at a

limited public forum “as long as the regulation on speech is

reasonable and not an effort to suppress expression merely

because officials oppose the speaker’s view”). Thus, this First

Amendment principle that the Mayor and City Council vio-

lated (and the majority ignores) has been the law of the land

for over a half century.

As I noted earlier, the district court’s procedure in granting

judgment to defendants on qualified immunity was akin to a

summary judgment proceeding.5 That being the case, we are

required to draw every reasonable inference in favor of the

opposing party, here Norse. But the majority does exactly the

opposite. First, the majority “agree[s] with the district court

that the ejection was not on account of any permissible

expression of a point of view.” Maj. op. at 14801. But this

5

The district court never specified what procedure it was following,

only that it was holding a “hearing” to resolve the issue of qualified immu-

nity. Neither does the majority acknowledge the district court’s unusual

procedure, nor indicate what legal standard applied to that procedure, nor

what standard of review it is applying.

NORSE v. CITY OF SANTA CRUZ 14807

view rejects the reasonable inference that the Mayor was act-

ing to enforce the Council’s stated “abhorrence of [Norse’s]

Nazi gesture.” The majority also agrees with the district

court’s view “that Norse intended his salute . . . to be disrup-

tive.” Id. at 14800. This, too, is an inference drawn against

Norse. And again, the majority infers that “[t]he 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 [by others]

in the room.” Id. at 14802. But why, at this stage, should such

an inference be drawn against Norse? All these are issues of

controverted fact which should have been submitted to the

jury — the trier of fact.

From all this, the majority concludes that “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 pre-

sented by the disruptions.” Id. at 14801. I have viewed the

same video of the 2002 Council meeting on which the major-

ity bases its conclusion, and to conclude that the circum-

stances were “difficult” and that there was a “threat of

disorder,” as the majority does, is hyperbolic, to say the least.

Most reasonable persons would conclude, after viewing the

same video, that this meeting was no more “difficult” or “dis-

orderly” than any other small-town Council meeting. In any

event, this too is a question of fact. But, even if the majority’s

“findings” are taken at face value, the threat of disruption by

others does not excuse the denial of Norse’s clearly estab-

lished First Amendment rights. As the Supreme Court has

reminded us, “in our system, undifferentiated fear or appre-

hension of disturbance is not enough to overcome the right to

freedom of expression.” Tinker, 393 U.S. at 508.

If the reasonable inferences are drawn in favor of Norse, as

should have done in this summary-judgment-like proceeding,

Norse was deprived of his First Amendment right silently to

protest the Council’s action by his Nazi salute because the

14808 NORSE v. CITY OF SANTA CRUZ

Mayor and Council carried out their previously voiced threat

— that Norse would be removed from the meeting if he

engaged in rendering his Nazi salute again. What’s more, this

law has been clearly established for decades. There is nothing

ambiguous or “iffy” about this aspect of First Amendment

law. No reasonable local public official could believe that he

could lawfully remove a member of the public from a public

meeting because he found that person’s silent speech to be

abhorrent or personally offensive.

I respectfully dissent from that portion of the majority opin-

ion which grants the Mayor and Council members qualified

immunity from liability on Norse’s First Amendment claim

for being ejected from the 2002 Council meeting. Because the

law was clearly established and the evidence supports the

inference that the Mayor and Council members acted to sup-

press speech they found to be abhorrent and offensive, even

though it was not disruptive, it was error to grant qualified

immunity to defendants as a matter of law. I would reverse

the grant of qualified immunity as to the 2002 meeting and

remand this claim for trial.