Benito Acosta v. City of Costa Mesa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENITO ACOSTA, 

Plaintiff-Appellant,

v.

CITY OF COSTA MESA; ALLAN

MANSOOR, Mayor of the City of

Costa Mesa, in his official and

individual capacities, No. 10-56854

Defendants-Appellees, D.C. No.

 8:06-cv-00233-

DOC-MLG

JOHN HENSLEY, Chief of Police,

Costa Mesa Police Department; OPINION

DAVID ANDERSEN; DAVID DEHUFF;

JOHN DOEZIE; BRYAN GLASS;

DANIEL GUTH; DAVID MAKIYAMA;

JEFF TOBIN; DEREK TRUSK, in their

official and individual capacities,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted

July 9, 2012—Pasadena, California

Filed September 5, 2012

10607

10608 ACOSTA v. CITY OF COSTA MESA

Before: Richard C. Tallman and N. Randy Smith,

Circuit Judges, and Dee V. Benson, District Judge.*

Opinion by Judge Tallman;

Dissent by Judge N.R. Smith

*The Honorable Dee V. Benson, United States District Judge for the

District of Utah, sitting by designation.

ACOSTA v. CITY OF COSTA MESA 10611

COUNSEL

Belinda E. Helzer, Esq., ACLU Foundation of Southern Cali-

fornia, Orange, California, for the plaintiff-appellant.

10612 ACOSTA v. CITY OF COSTA MESA

M. Lois Boback, Esq. (argued) and Daniel K. Spradlin, Esq.,

Woodruff, Spradlin & Smart, APC, Costa Mesa, California,

for the defendants-appellees.

OPINION

TALLMAN, Circuit Judge:

Costa Mesa Municipal Code § 2-61 makes it a misdemea-

nor for members of the public who speak at City Council

meetings to engage in “disorderly, insolent, or disruptive

behavior.” Benito Acosta (“Acosta”) was removed from the

Costa Mesa City Council meeting for an alleged violation of

the ordinance. Acosta appeals the district court’s dismissal of

his First Amendment facial challenge to the ordinance. He

also appeals the district court’s grant of partial summary judg-

ment in favor of the California city and various individual

police officers on his state-law free speech claims and his

Fourth Amendment claims. A jury returned a defense verdict

on all remaining issues submitted for trial. He also appeals the

district court’s discretionary decisions to admit certain evi-

dence, refusal to give his proposed limiting instruction, denial

of his renewed motion as a matter of law after the jury

returned its verdict, and the denial of declaratory relief. He

claims that the ordinance is facially invalid and that it was

enforced against him only because he expressed a view con-

trary to the Mayor’s.

Because § 2-61 fails to limit proscribed activity to only

actual disturbances, we reverse the district court’s constitu-

tionality ruling and find the statute facially invalid. However,

the word “insolent” is easily removed from the ordinance

without detriment to the purpose of § 2-61 and it need not be

wholly invalidated since it was properly applied to Acosta’s

disruptive behavior. We affirm the remainder of the district

court’s determinations.

ACOSTA v. CITY OF COSTA MESA 10613

I

Petitioner-Appellant Benito Acosta is a U.S. citizen of

Mexican descent who resides in Orange County, California.

Acosta is a founding member of the Colectivo Tonantizin, an

organization that represents the rights of undocumented and

immigrant workers and their families. Defendants are the City

of Costa Mesa (“City”), Mayor Allan Mansoor (the “Mayor”),

Chief of Police John Hensley, and several individual police offi-

cers.1

The Costa Mesa City Council meets on the first and third

Tuesday of every month, with a public portion commencing

at 6:00 p.m. The Mayor is the presiding officer who chairs the

meeting. In compliance with California law, members of the

public may address the City Council concerning any item

listed on the meeting agenda at the time designated for public

comment.2 Speakers are each afforded three minutes to speak.

The City ordinances establish rules regulating council

meetings. See Costa Mesa Muni. Code §§ 2-37–2-87. At issue

here is § 2-61, which governs individual conduct at council

meetings. A violation of § 2-61 may be prosecuted as a mis-

1

The officers pertinent to the appeal are Lieutenant David Andersen,

Sergeant Bryan Glass, and Officers David DeHuff, and Daniel Guth, the

officers who physically ejected Acosta from the meeting after Chief Hens-

ley directed Acosta’s removal when he failed to cease his disruptive activ-

ities as requested by the Mayor.

2

“The Ralph M. Brown Act, [California Government Code § 54950 et

seq.], is designed to encourage public participation in government.” Coali-

tion of Labor & Agriculture v. Cty. of Santa Barbara Bd. of Supervisors,

28 Cal. Rptr. 3d 198, 199 (Ct. App. 2005). Section 54954.3(a) governs the

circumstances under which the public must be allowed to address a local

legislative body. It provides in part: “Every agenda for regular meetings

shall provide an opportunity for members of the public to directly address

the legislative body on any item of interest to the public, before or during

the legislative body’s consideration of the item, that is within the subject

matter jurisdiction of the legislative body . . . .”

10614 ACOSTA v. CITY OF COSTA MESA

demeanor. Meetings are recorded by video cameras and the

relevant recordings are part of the record on appeal.

In December 2005 the Mayor proposed that the City enter

into an agreement with Immigration and Customs Enforce-

ment (“ICE”) to have its police officers designated immigra-

tion agents with the authority to enforce federal immigration

laws in the City. The proposal was placed on the City Coun-

cil’s December 6, 2005, agenda and passed by a vote of three

to two. Members of the public were permitted to comment on

the ICE agreement.

Acosta believed an agreement with ICE would undermine

public safety, arguing it would deter undocumented workers

from reporting crimes against them for fear of deportation. He

attended the December 6 council meeting to express his oppo-

sition to the proposal. When Acosta’s time came to speak, the

video recordings show that he was visibly emotional and agi-

tated.3 Toward the end of his comments he called the Mayor

a “racist pig,” at which point the Mayor told Acosta to stop.

Acosta repeated his slur, which prompted the Mayor to cut

Acosta’s speaking time short by calling for a recess. Acosta

then responded by calling the Mayor a “fucking racist pig.”

The Council nonetheless passed the proposal.

After receiving local and national media attention, the City

Council again placed the ICE agreement on the agenda of the

3

Acosta submitted a DVD that shows Acosta’s remarks at the December

6, 2005, meeting. Three DVDs of the January 3, 2006, meeting were intro-

duced into evidence. Acosta submitted one DVD that shows the relevant

portions of proposal supporter Jim Gilchrist’s speech and Acosta’s speech

in opposition. It also includes local news footage taken once Acosta was

removed from the chambers. Acosta also submitted a DVD of footage

taken by an immigration watch dog group. This DVD depicts the meeting

from a different angle that includes more footage of the audience. Appel-

lees submitted a DVD that shows the entire hour of the council meeting

up to Acosta’s removal and includes the Mayor’s opening warning to all

participants that they could be removed for causing a disturbance.

ACOSTA v. CITY OF COSTA MESA 10615

next regular Council meeting on January 3, 2006. Prior to that

meeting, groups supporting and opposing the agreement dem-

onstrated outside City Hall. Council Chambers was filled to

overflow capacity and additional demonstrators remained out-

side. During the public comment portion of the meeting a

total of twenty-five speakers addressed the City Council, fif-

teen in favor of the agreement and ten against.

Jim Gilchrist, co-founder of the Minuteman Project, was

one of the first speakers in favor of the ICE agreement. At the

beginning of his time he turned to the audience and stated that

he would like for the supporters of his position to stand

silently at the end of his speech. Some members of the audi-

ence began to stand. The Mayor interrupted to clarify whether

Gilchrist was asking for people to stand to show that he would

be the only speaker representing this group.4 Gilchrist turned

back to the Mayor and agreed that he was representing the

views of the entire group. The Mayor then stated that it would

be helpful if the other groups could also send up one represen-

tative; he added that everyone was entitled to speak if they

wished, however.

Acosta’s turn to speak in opposition to the ICE agreement

began about fifty minutes later. Approximately two minutes

into his remarks, Acosta turned away from the council and

toward the audience to ask members who agreed with his

viewpoint to stand. The Mayor interrupted him, saying, “No,

we’re not going to do that.” In defiance of that order, still fac-

ing the audience, Acosta nonetheless said “Do it” three times.

Approximately twenty to thirty people stood up in response to

his urging and some began clapping. The Mayor then abruptly

4

Costa Mesa Municipal Code § 2-63 authorizes inquiry into speaker

representation: “In order to expedite matters and to avoid repetitious pre-

sentations, whenever any group of persons wishes to address the council

on the same subject matter, it shall be proper for the presiding officer to

inquire whether or not the group has a spokesman and if so, that he be

heard with the following speakers in the group to be limited to facts not

already presented by the group spokesman.”

10616 ACOSTA v. CITY OF COSTA MESA

recessed the meeting and indicated the council would return

in a few minutes.

Acosta then turned back to face the departing council in an

attempt to complete his speech. As he did so, an officer

approached him at the podium. Acosta testified that at first the

officers told him his time was up and moved the microphone.

The officers asked Acosta to step down from the podium and

leave the chambers, but Acosta did not immediately comply.

Instead he repeatedly asked why his speaking time was cut

short and why he was being asked to leave the podium. The

officers then tried to quietly escort him out of the chambers,

but Acosta stopped and asked to retrieve his notes from the

podium. After he retrieved his notes, Acosta began to tell the

officers not to touch him and jerked away from their attempts

to guide him out of the room.

Chief Hensley approached the group and directed his offi-

cers to take Acosta out of the Council Chambers. The officers

again tried to guide Acosta away from the podium, but Acosta

attempted to prevent his removal by leaning away from the

officers and planting his feet. Sergeant Glass testified that

Acosta was “not complying” with their requests to leave and

he was “stomping or placing his feet to hesitate or hamper his

movement.” The officers then took Acosta’s arms. Acosta

alleged that the officer behind him also wrapped his arm

around Acosta’s neck, similar to a choke hold, and that the

officers kicked, dragged, and punched him while removing

him. Sergeant Glass testified that Lieutenant Andersen

applied an upper-body control hold with his arm across

Acosta’s chest and the video recording, submitted by Acosta,

does not show any kind of kicking or punching.

At this point, the officers testified he was not under arrest,

but only being removed to help diffuse an escalating situation.

Once the officers were outside the Council Chambers, how-

ever, they encountered a large crowd and Acosta increased his

efforts to resist the officers. When the officers attempted to

ACOSTA v. CITY OF COSTA MESA 10617

move Acosta into the City Hall and away from the volatile

crowd of demonstrators outside City Hall (some of whom

threw objects at the police), Acosta wrapped his legs and arms

around a pole in an attempt to prevent the officers from mov-

ing him. The officers separated him from the pole and began

moving him toward the City Hall. Acosta continued to resist,

causing himself and an officer to fall to the ground. Once

inside the City Hall, Acosta was placed in handcuffs. Chief

Hensley and another witness testified that Acosta complained

that the cuffs were making his arms hurt.

Acosta brought eleven claims against Mayor Mansoor,

Chief Hensley, the City, and certain individual police officers.

The claims relevant to this appeal include: (1) a First Amend-

ment facial challenge to § 2-61; (2) a facial challenge to § 2-

61 under the free speech clause of the California Constitution;

(3) a request for a declaration that the defendants enforced

§ 2-61 in an unconstitutional manner; (4) a claim that he was

unreasonably and unlawfully seized in violation of the Fourth

Amendment; (5) an as-applied challenge to § 2-61 under the

First Amendment; and (6) an as-applied claim under the Cali-

fornia Constitution that sought damages. At the district court

and here, the core of Acosta’s argument is that § 2-61 uncon-

stitutionally restricts speech and that as applied to him the

defendants selectively enforced § 2-61 based upon Acosta’s

opposition and criticism of the Mayor and Council Members

who supported the ICE agreement.

The defendants moved to dismiss the complaint. The dis-

trict court dismissed without prejudice Acosta’s facial chal-

lenges under both the U.S. and California Constitutions, but

denied the motion as to the remaining claims because there

were material questions of fact that a jury needed to decide—

the most significant being whether Acosta’s behavior dis-

rupted the Council meeting. The court also concluded the

Mayor was entitled to discretionary act immunity as to all of

Acosta’s state-law claims to the extent that he sought mone-

tary damages and granted the City public entity immunity for

10618 ACOSTA v. CITY OF COSTA MESA

Acosta’s as-applied challenges under the California Constitu-

tion to the extent that he sought damages.

Subsequently, the court granted in part and denied in part

the defendants’ motion for summary judgment. The district

court denied summary judgment of Acosta’s as-applied chal-

lenge under the First Amendment against the Mayor and the

City because material facts were disputed, but granted it as to

the officer defendants on grounds of qualified immunity when

they carried out orders to remove Acosta from the room. The

court also denied summary judgment on Acosta’s claim for

declaratory relief and his federal due process claims against

the Mayor and the City. The court granted summary judgment

in favor of all the defendants on Acosta’s state law free

speech claim, and in favor of the police-officer defendants as

to his Fourth Amendment, federal due process, and false

arrest claims.

The jury heard Acosta’s First and Fourteenth amendment

claims arising under 42 U.S.C. § 1983 against the Mayor and

the City. The jury implicitly found his conduct disruptive

when it rejected his First and Fourth Amendment claims.

After trial, Acosta moved for renewed judgment as a matter

of law and for a new trial. Defendants also requested entry of

judgment on Acosta’s declaratory judgment claim not tried to

the jury. The district court denied both the motion for

renewed judgment and Acosta’s request for declaratory relief.

Acosta now appeals.

II

We turn first to Acosta’s facial challenge to Costa Mesa

Municipal Code § 2-61.5 We review de novo a dismissal for

5

Section 2-61 provides:

(a) The presiding officer at a meeting may in his or her discretion

bar from further audience before the council, or have removed

ACOSTA v. CITY OF COSTA MESA 10619

failure to state a claim. See Kennedy v. S. Cal. Edison Co.,

268 F.3d 763, 767 (9th Cir. 2001). We also review de novo

the legal question of whether a statutory provision is constitu-

tional. Planned Parenthood of S. Ariz. v. Lawall, 307 F.3d

783, 786 (9th Cir. 2002).

In First Amendment jurisprudence, a person asserting a

statute is overly broad need not demonstrate that his “own

conduct could not be regulated by a statute drawn with the

requisite narrow specificity.” Broadrick v. Oklahoma, 413

U.S. 601, 612 (1973). “Litigants, therefore, are permitted to

challenge a statute not because their own rights of free expres-

sion are violated, but because of a judicial prediction or

assumption that the statute’s very existence may cause others

not before the court to refrain from constitutionally protected

speech or expression.” Id.

from the council chambers, any person who commits disorderly,

insolent, or disruptive behavior, including but not limited to, the

actions set forth in (b) below.

(b) It shall be unlawful for any person while addressing the coun-

cil at a council meeting to violate any of the following rules after

being called to order and warned to desist from such conduct:

(1) No person shall make any personal, impertinent, profane,

insolent, or slanderous remarks.

(2) No person shall yell at the council in a loud, disturbing

voice.

(3) No person shall speak without being recognized by the

presiding officer.

(4) No person shall continue to speak after being told by the

presiding officer that his allotted time for addressing the

council has expired.

(5) Every person shall comply with and obey the lawful

orders or directives of the presiding officer.

(6) No person shall, by disorderly, insolent, or disturbing

action, speech, or otherwise, substantially delay, interrupt, or

disturb the proceedings of the council.

10620 ACOSTA v. CITY OF COSTA MESA

[1] For a statute to be facially invalid on overbreadth

grounds, it must be substantially overbroad. Members of Cty.

Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 80001

(1984). There must be a “realistic danger that the statute itself

will significantly compromise recognized First Amendment

protections of parties not before the Court.” Id. at 801. A stat-

ute will not be held invalid simply because we can “conceive

of a single impermissible application.” Broadrick, 413 U.S. at

630.

In Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir.

2010) (en banc), we held that in a limited public forum such

as a city council meeting, a city’s rules of decorum will not

be facially overbroad “where they only permit a presiding

officer to eject an attendee for actually disturbing or impeding

a meeting.” A city, however, cannot define actual disturbance

in any way it chooses; the statute must not unnecessarily

restrict protected speech. Id.

A

“The first step in overbreadth analysis is to construe the

challenged statute; it is impossible to determine whether a

statute reaches too far without first knowing what the statute

covers.” United States v. Williams, 553 U.S. 285, 293 (2008).

Because § 2-61 is part of the Municipal Code of Costa Mesa,

we must apply California authority to interpret the statute.

Our interpretation of § 2-61 must determine whether (1) any

narrowing constructions are available to save § 2-61 without

rewriting the ordinance, and if not, (2) whether the remainder

of the ordinance can be severed from the constitutionally

invalid text. See In re Berry, 436 P.2d 273, 286 (1968); see

also Planned Parenthood of Id., Inc. v. Wasden, 376 F.3d

908, 925, 930, 935 (9th Cir. 2004).

At step one, the City argues that § 2-61 can be read nar-

rowly to prohibit only speech that actually disrupts or disturbs

the city council meeting. However, because of the inclusion

ACOSTA v. CITY OF COSTA MESA 10621

of the term “insolent” in § 2-61(a), this argument is unavail-

ing.

We confronted a similar issue in White v. City of Norwalk,

900 F.2d 1421 (9th Cir. 1990). In City of Norwalk, the plain-

tiffs brought a facial challenge to a city ordinance that pro-

scribed “personal, impertinent, slanderous or profane

remarks.” Id. at 1424.6 The City of Norwalk, however, offered

a narrow construction of the ordinance that only permitted

removal when someone who made a proscribed remark was

acting in a way that actually disturbed the meeting. We

adopted this construction, because language after the offend-

ing phrase indicated that the prohibited conduct must be con-

duct which “disrupts, disturbs or otherwise impedes the

orderly conduct of any Council meeting.” Id.

In adopting the City of Norwalk’s narrow construction, we

held that the city council meetings, once open to public partic-

ipation, are limited public forums. A council can regulate not

only the time, place, and manner of speech in a limited public

forum, but also the content of the speech with reasonable and

viewpoint neutral regulations. Id. at 1425; see also Kindt v.

Santa Monica Rent Control Bd., 67 F.3d 266, 27071 (9th Cir.

1995). Indeed, the very California statute that requires public

6

In pertinent part, Norwalk Municipal Code § 2-1.1 provided:

(b) Rules of Decorum. While any meeting of the City Council is

in session, the following rules of order and decorum shall be

observed: . . .

3. Persons Addressing the Council . . . Each person who

addresses the Council shall not make personal, impertinent,

slanderous or profane remarks to any member of the Coun-

cil, staff or general public. Any person who makes such

remarks, or who utters loud threatening, personal or abusive

language, or engages in any other disorderly conduct which

disrupts, disturbs or otherwise impedes the orderly conduct

of any Council meeting shall, at the discretion of the presid-

ing officer or a majority of the Council, be barred from fur-

ther audience before the Council during that meeting.

10622 ACOSTA v. CITY OF COSTA MESA

meetings to include public comment portions restricts the con-

tent of those public comments. Cal. Gov’t Code § 54954.3

(permitting members of the public to address the legislative

body on matters “within the subject matter jurisdiction of the

legislative body”).

[2] Here, Acosta points to § 2-61(b)(1) as the offending

section of the ordinance. Section 2-61(b)(1) standing alone

prohibits any “personal, impertinent, profane, insolent, or

slanderous remarks.” And like the clause at issue in City of

Norwalk, that—without limitation—is an unconstitutional

restriction of speech. Unlike the City of Norwalk ordinance,

however, § 2-61 is not readily susceptible to a narrowing con-

struction because the requirement of an actual disruption is

not evident in the ordinance itself.

Though § 2-61(a) could be read to modify all of subsection

(b), subsection (a) itself is constitutionally infirm. Subsection

(a) significantly departs from the ordinance in City of Nor-

walk by including the modifier “insolent” to describe the type

of behavior that creates an actual disruption. In City of Nor-

walk, the text of the regulation prohibited speech that “dis-

rupts, disturbs, or otherwise impedes the orderly conduct of

the Council meeting.” 900 F.2d at 1426. Disrupt, disturb, and

impede all refer to actions that are actual disruptions.

[3] In contrast, the text of § 2-61 prohibiting “insolent”

behavior cannot be narrowed to include only an actual disrup-

tion. Insolent is defined as “proud, disdainful, haughty, arro-

gant, overbearing; offensively contemptuous of the rights or

feelings of others” or “contemptuous of rightful authority;

presumptuously or offensively contemptuous; impertinently

insulting.” Oxford English Dictionary Online, Oxford Univer-

sity Press, http://www.oed.com (quick search “insolent”) (last

visited July 18, 2012). This type of expressive activity could,

and often likely would, fall well below the level of behavior

that actually disturbs, disrupts, or impedes a city council

meeting. For example, in Norse, we considered a First

ACOSTA v. CITY OF COSTA MESA 10623

Amendment challenge that involved what could be character-

ized as insolent behavior. There, the plaintiff was ejected

from a city council meeting and arrested after he gave the

council a silent Nazi salute in protest of the mayor’s treatment

of another speaker. 629 F.3d at 969. This momentary gesture

caused no reaction, delay, or disturbance, and in fact the

mayor did not even notice the gesture until another council-

man told him of it. We held that “[a]ctual disruption means

actual disruption,” and a city cannot “define disruption so as

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

at 976.

Arguably, subsection (b) could narrow the definition of

insolent behavior. When read in conjunction with subsection

(b)(1), however, § 2-61 deems insolent, personal, profane,

impertinent, or slanderous remarks as grounds for removal. A

comment amounting to nothing more than bold criticism of

city council members would fall in this category, whereas

complimentary comments would be allowed. Indeed, a silent

thumbs down or other crude hand gesture may be used to

express contempt or impertinence, thus qualifying as insolent

behavior under § 2-61, but would not necessarily be disrup-

tive. Section 2-61, as it stands, sweeps in this very type of

protected expression.

Nor can § 2-61 be narrowed by reading “disorderly” or

“disruptive” to restrict “insolent.” The California courts fol-

low the rule of statutory construction that gives disjunctive

and distinct meaning to items separated by the word “or.” The

California Supreme Court has explained that “[t]he ordinary

and popular meaning of the word ‘or’ is well settled. It has a

disjunctive meaning . . . the function of the word ‘or’ is to

mark an alternative such as either this or that.” In re Jesusa

V., 85 P.3d 2, 24 (Cal. 2004) (internal quotation marks and

citations omitted). Because “insolent” is separated from “dis-

orderly” and “disruptive” by the word “or,” it must be inter-

preted to mean something distinct; on the face of the

10624 ACOSTA v. CITY OF COSTA MESA

ordinance, proscribed behavior is either insolent or disorderly

or disruptive.

The city’s argument that the statute is less suspect because

it is aimed only at behavior is also unavailing. A statute that

regulates speech cannot be saved by simply adding the word

conduct, behavior, or action. See Cohen v. California, 403

U.S. 15, 18 (1971). Indeed, in Texas v. Johnson, 491 U.S. 397

(1989), the Court rejected the government’s argument that the

statute prohibiting flag burning was aimed at conduct. The

Court explained that the government’s argument “cannot

depend here on the distinction between written or spoken

words and nonverbal conduct.” Id. at 416. Such a distinction

“is of no moment where the nonverbal conduct is expressive”

and “where the regulation of that conduct is related to expres-

sion . . . .” Id. Here, subsection (a) regulates both speech and

conduct for no other reason than the expressive nature of that

conduct. Consider the thumbs down which is given to express

general disapproval or the Nazi salute of Norse—because § 2-

61 is not limited to conduct that actually disrupts the meeting,

these instances of expressive, non-disruptive conduct are

swept into the reach of § 2-61, but an approving thumbs up

sign would not be “insolent,” and therefore permissible,

behavior. Thus, the City’s reliance on conduct does not suc-

cessfully narrow the statute.

The City’s last argument is also unavailing. At oral argu-

ment, the City argued that § 2-61(b)(6) could be read to limit

the entire statute. Section 2-61(b)(6) reads: “No person shall,

by disorderly, insolent, or disturbing action, speech, or other-

wise, substantially delay, interrupt, or disturb the proceedings

of the council.” But by the terms of the ordinance, subsection

(b)(6) is merely one of many, non-exclusive, examples of how

someone can act, under subsection (a), in a “disorderly, inso-

lent, or disruptive” manner. And, therefore, it cannot narrow

the breadth of subsection (a).

Finally, the fact that more narrowly tailored alternatives to

regulate disruptive conduct are available to the City is evident

ACOSTA v. CITY OF COSTA MESA 10625

from review of other Costa Mesa ordinances. Section 2-64

states:

It shall be unlawful for any person in the audience at

a council meeting to do any of the following . . . (1)

Engage in disorderly, disruptive, disturbing, delaying

or boisterous conduct, such as . . . handclapping,

stomping of feet, whistling, making noise, use of

profane language or obscene gestures, yelling or

similar demonstrations, which conduct substantially

interrupts, delays or disturbs the peace and good

order of the proceedings of the council.

(emphasis added). Similarly, § 2-60 states: “Members of the

council shall not, by disorderly, insolent, or disturbing action,

speech, or otherwise, substantially delay, interrupt or disturb

the proceedings of the council.” Costa Mesa Muni. Code § 2-

60 (emphasis added). Both §§ 2-60 and 2-64, like the ordi-

nance in City of Norwalk, only proscribe activity that actually

interrupts, delays, or disturbs the council and neither broadly

prohibits remarks or expressive conduct merely because they

are insolent.

[4] We hold that § 2-61 is unconstitutionally overbroad on

its face because it unnecessarily sweeps a substantial amount

of non-disruptive protected speech or expressive conduct

within its prohibiting language.

B

[5] We next must decide if, without the constitutionally

infirm word “insolent,” the remaining text is severable and

operative—a question of California law.7 Leavitt v. Jane L.,

7

Although neither party briefed the issue of severability, the question of

severability is an inherent part of the process of constitutional adjudica-

tion. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 507 (1985)

(rejecting the argument that appellants waived the severability issue where

10626 ACOSTA v. CITY OF COSTA MESA

518 U.S. 137, 139 (1996) (per curiam). In California, and in

general, severing the offending provision is the more prudent

course. Gerken v. Fair Political Practices Comm’n, 863 P.2d

694, 698 (Cal. 1993), see also Briseno v. Cty. of Santa Ana,

8 Cal. Rptr. 2d 486, 490 (Ct. App. 1992) (“[I]nvalid provi-

sions of a statute should be severed whenever possible to pre-

serve the validity of the remainder of the statute.”).

The Costa Mesa Municipal Code contains a severance

clause at § 1-32:

It is hereby declared to be the intention of the city

council that the sections, paragraphs, clauses and

phrases of this Code are severable, and if any phrase,

clause, sentence, paragraph or section of this Code

shall be declared unconstitutional, invalid or unen-

forceable by the valid judgment or decree of a court

of competent jurisdiction, such unconstitutionality

shall not affect any of the remaining phrases,

clauses, sentences, paragraphs and sections of this

Code.

Like most severance clauses, this clause “calls for sustaining

the valid part of the enactment, especially when the invalid

part is mechanically severable.” McMahan v. Cty. & Cnty. of

San Francisco, 26 Cal. Rptr. 3d 509, 513 (Ct. App. 2005)

(internal quotation marks omitted). But a severance clause

and mechanical severability are not dispositive. The funda-

they did not argue it before the appellate court after finding a part of the

statute unconstitutional, deeming it “quite evident that the remainder of

the statute retains its effectiveness . . . . In these circumstances, the issue

of severability is no obstacle to partial invalidation, which is the course the

Court of Appeals should have pursued.”); see also Randall v. Sorrell, 548

U.S. 230, 262 (2006) (considering severability even where parties did not

argue it in their briefs); Denver Area Educ. Telecomms. Consortium, Inc.

v. FCC, 518 U.S. 727, 767 (1996) (same); New York v. United States, 505

U.S. 144, 186 (1992) (same).

ACOSTA v. CITY OF COSTA MESA 10627

mental question is—without the infirm text—whether “the

remainder is complete in itself and would have been adopted

by the legislative body had the latter foreseen the partial inva-

lidity of the statute or constitutes a completely operative

expression of the legislative intent and is not so connected

with the rest of statute as to be inseparable.” Id. (alterations

and internal quotation marks omitted).

Under California law, this consideration examines three

criteria— grammatical, functional, and volitional severability

—all of which must be satisfied. Id.

1

[6] “An enactment passes the grammatical test where the

language of the statute is mechanically severable, that is

where the valid and invalid parts can be separated by para-

graph, sentence, clause, phrase or even single words.” Barlow

v. Davis, 85 Cal. Rptr. 2d 752, 757 (Ct. App. 1999) (emphasis

added). Here, it is clear that the word insolent is grammati-

cally severable. It is simply one of three adjectives used to

describe the type of behavior that warrants removal from a

council meeting.8 We have already noted that “insolent” is

distinct from the words surrounding it as it is separated from

them by the word “or.” Thus, “the wording of [§ 2-61] is not

affected by removal” of “insolent.” Id. (emphasis in original);

see also 13 Cal. Jur. Constitutional Law § 81 (2012). Without

“insolent,” § 2-61 proscribes disorderly or disruptive behav-

ior, a constitutionally valid restriction.9 Cty. of Norwalk, 900

F.3d at 1425.

8

Indeed, according to the structure of the sentence, “insolent” must be

read to modify behavior. Thus, § 2-61 prohibits disorderly behavior, inso-

lent behavior, and disruptive behavior. It is the restriction of “insolent

behavior” that is unconstitutional.

9

Our colleague’s argument in partial dissent that the severance clause,

§ 1-32, does not allow for the severance of one word from § 2-61 places

undue weight on the fact that no California case has approved removal of

10628 ACOSTA v. CITY OF COSTA MESA

The dissent relies upon two California cases, Long Beach

Lesbian and Gay Pride, Inc. v. City of Long Beach, 17 Cal.

Rptr. 2d 861, 868 (Ct. App. 1993) and County of Sonoma, 93

Cal. Rptr. 3d at 62, to support its position that one word is not

grammatically severable from a statute under California law.

Both cases, however, are easily distinguished as removal of

the single words in those cases fundamentally changed the

meaning of the statutes. That is not the case here.

one word in the middle of a statute. First, the weight of California cases

focus on a common sense reading without the offensive term and rarely

focus so technically on the words of the severability clause. See, e.g.,

Briseno, 6 Cal. Rptr. at 490 (finding unconstitutional text severable from

sequential sections of the statutory scheme even where that word (family)

did not occur in the subsequent sections as “any overtones of ‘family’ can

be easily severed”). Courts have also found statutes severable where no

severance clause existed. See Denver Area Educ. Telcomms. Consortium,

518 U.S. at 767; Legislature v. Eu, 816 P.2d 1309, 1335 (Cal. 1991) (“But

in any event, it is clear that severance of particular provisions is permissi-

ble despite the absence of a formal severance clause.”) (citing People v.

Mirmirani, 636 P.2d 1130 (Cal. 1981)). Furthermore, California courts

often ask whether the remainder of the statute—once the offending text is

removed—is severable and legally operative. See, e.g., Gerken, 863 P.2d

at 699 (“Santa Barbara [530 P.2d 605] stands for the proposition that if

a part to be severed reflects a ‘substantial’ portion of the electorate’s pur-

pose, that part can and should be severed and given operative effect.”)

(emphasis added); McMahan, 26 Cal. Rptr. 3d at 512 (“[T]he sole issue

we must decide is whether the valid portion of the Care Not Cash law that

requires a change from assistance through cash to assistance through ser-

vices can be severed from the admittedly invalid funding mandate.”)

(emphasis added); Barlow, 85 Cal. Rptr. 2d at 757 (“We agree with appel-

lants that in addition to the severability clause, section 10115.5 is mechan-

ically and grammatically severable from the provisions of article 1.5

declared unconstitutional . . . .”) (emphasis added); but see Cnty. of

Sonoma v. Sup. Ct. of Sonoma Cnty., 93 Cal. Rptr. 3d 39, 58 (Ct. App.

2009) (concluding that where one offensive word was the subject of much

debate before enactment, that word “could not be severed from the

remainder of the legislation”). Our reading of the weight of the cases,

leads us to the conclusion that asking whether California courts allow the

removal of one, non-essential, word focuses on the wrong question.

Instead, our focus must be upon the remainder and whether any sections,

paragraphs, clauses or phrases are severable and operative.

ACOSTA v. CITY OF COSTA MESA 10629

First, County of Sonoma does little to support the dissent’s

position that one word is not grammatically severable under

California law as severability was rejected under the voli-

tional factor and not the grammatical factor. 93 Cal. Rptr. at

62. There, the court of appeal found California Code of Civil

Procedure § 1299.7(c) impermissibly allowed a minority of

the county board to set employee compensation by requiring

a unanimous vote of the board to veto an arbitration panel’s

decision regarding negotiations between a county employee

union and the county. Cnty. of Sonoma, 93 Cal. Rprtr. at 57.

In deciding whether “unanimous” could be severed from

the statute to cure the impropriety, the court assumed the

word “unanimous” was grammatically and functionally sever-

able. Id. at 62. The court, however, found it was not volition-

ally severable as it could not “be certain that the Legislature

would have enacted the measure without the unanimous vote

requirement” because the Senate bill analysis specifically

referred to it, and because the “Legislature adopted the bill

over the specific objections of local governments to the unani-

mous vote requirement.” Id. Here, there is no such history

with the word “insolent,” nor, as we address below, was it so

essential to § 2-61’s purpose of ensuring the orderly conduct

of the council’s meeting that it cannot be removed.

City of Long Beach also does little to support the dissent’s

argument. There the appellate court held that “the [chal-

lenged] ordinance’s central provision governing the issuance

of [parade] permits unconstitutionally grants unrestrained dis-

cretion whether to grant or deny them, and that the section

cannot be severed from the rest of the ordinance.” Cty. of

Long Beach, 17 Cal. Rptr. 2d at 865 (emphasis added). The

court did not refuse to sever the word “may” as the dissent

suggests, but instead asked whether the whole section that

granted the City Manager improper discretion could “be sev-

ered from the rest of [the] Chapter.”10 Id. at 868. It held that

10

We read City of Long Beach differently than our colleague. First, we

note that the court considered interpreting “may” to mean “shall” as a nar-

10630 ACOSTA v. CITY OF COSTA MESA

the portions Long Beach sought to save were not severable

because the invalidated section was the hub of the statutory

scheme. Id. (“With the pivotal permit-granting function

unconstitutionally structured, these sections have no verbal

anchor or basis.”). Here, § 2-61 is but a part of the City’s

overall scheme to maintain the decorum of City Council

meetings. The sections regulating the behavior of the council

members or audience members do not depend upon § 2-61 for

operation. Nor is the word “insolent” pivotal to the operation

of § 2-61’s subsections, which enumerate examples of con-

duct that could warrant removal for impeding the expeditious

discharge of the Council’s business.

2

To be functionally severable, constitutionally infirm text

must not be necessary to the ordinance’s operation and pur-

pose. Cty. of Long Beach, 17 Cal. Rptr. 2d at 868. Here § 2-

37(a) denotes the purpose of the City Council Meeting regula-

tions as “provid[ing] a guide for the city council and its staff

for the conduct of business and for the preparations of agenda

and minutes for city council meetings.” Section 2-61 meets

the purpose of conducting City Council business by regulating

the decorum of meetings. Generally, decorum ordinances and

regulations aim to reduce disruptions that detract from the

efficiency and effectiveness of orderly public meetings. We

see no reason to interpret § 2-61 as having a different or

unconventional purpose.

rowing construction, not as part of its severance analysis. Compare Cty.

of Long Beach, 17 Cal. Rptr. 2d at 868 (addressing the city’s argument

that “may” could be read to mean “shall”) with id. at 86869 (turning to the

severance argument). Second, even if we characterize the City of Long

Beach’s argument that “may” should have been read to mean “shall” as

a severance argument, it still would not change our analysis as we are not

considering replacing “insolent” with another word that has a completely

different meaning, but simply cutting it from the statute.

ACOSTA v. CITY OF COSTA MESA 10631

[7] Removal of “insolent” does not defeat the central pur-

pose of § 2-61. The central purpose is to prevent actual dis-

ruptions during and impediments to conducting an orderly

council meeting. The remaining portion of § 2-61 stands on

its own and is independently applicable, unaided by the word

insolent. Barlow, 85 Cal. Rptr. 2d at 757. Deeming someone

who “commits disorderly or disruptive behavior” removable

from council meetings once called to order serves that pur-

pose perfectly. Moreover, as a practical matter, it would cer-

tainly be possible for the City to enforce § 2-61 even without

being able to restrict insolent behavior. Nat’l Broiler Council

v. Voss, 44 F.3d 740, 749 (9th Cir. 1994) (per curiam). Sec-

tion 2-61 is functionally autonomous even if we remove the

restriction of insolent behavior.

3

The test for volitional severability examines whether the

legislature’s “attention was sufficiently focused upon the parts

to be severed so that it would have separately considered and

adopted them in the absence of the invalid portions.” Gerken,

863 P.2d at 699 (internal quotation marks omitted); see also

Cnty. of Sonoma, 93 Cal. Rptr. 3d at 62. Volitional severabil-

ity is the most important factor. Katz v. Children’s Hosp., 28

F.3d 1520, 1531 (9th Cir. 1994) (citing Calfarm Ins. Co. v.

Deukmejian, 771 P.2d 1247, 1256 (Cal. 1989)).

In Gerken, the California Supreme Court explained that

part of a statute, or in that case a voter-approved initiative,

can and should be severed and given operative effect where

that part reflects a substantial portion of the purpose of the

legislation. Gerken, 863 P.2d at 699. Furthermore, the remain-

der “cannot be rendered vague by the absence of the invali-

dated provisions or be inextricably connected to them by

policy considerations.” Barlow, 85 Cal. Rptr. 2d at 757.

[8] When courts endeavor to answer this query, they often

consider legislative history or the voter guidance materials

10632 ACOSTA v. CITY OF COSTA MESA

presented with a proposed statute. See, e.g., id. at 70001;

Cnty. of Sonoma, 93 Cal. Rptr. 3d at 63. While we do not

have the type of materials those courts were presented with

here, we do know that Costa Mesa’s ultimate purpose, as

denoted in §§ 2-37 and 2-61—2-64, was to enact a scheme to

regulate the conduct of not only public speakers, but also

audience members and council members, so as to allow the

City Council to conduct orderly meetings. We have said that

all a city council can proscribe are actual disturbances.

Removal of the word “insolent” still meets both the City’s

purpose and our legal requirements.11

This is not an instance like that in City of Long Beach,

where the unconstitutional text was “the hub” of the entire

statutory scheme and “without it the spokes cannot stand.” In

City of Long Beach, Long Beach Municipal Code

§ 560.030(c) unconstitutionally allowed unfettered discretion

to the City Manager in granting parade permits in violation of

the First Amendment. 17 Cal. Rptr. 2d at 868. The remaining

challenged sections required permittees to secure insurance

for the parade and to reimburse the City in the event of dam-

age. The court found that the insurance and reimbursement

provisions were inextricably linked to the permit requirement.

11

Even assuming, as our colleague does, that Costa Mesa made a con-

scious choice to “go further and prohibit ‘insolent’ speech” under § 2-61,

that would not necessarily prevent us from removing that unconstitutional

restriction where we conclude that the legislature would have wanted the

remaining restrictions in § 2-61 to stand. Metromedia, Inc. v. Cty. of San

Diego, 649 P.2d 902, 90608 (Cal. 1982) (“Decisions relating to severabil-

ity of partially unconstitutional legislation, however, envision a larger

judicial role; even if the statute following severability is not what the

enacting body originally intended, the courts can sustain the statute if sev-

erance is mechanically feasible and the legislative body would have pre-

ferred such an outcome to total invalidation.”); see also Katz, 28 F.3d at

153132 (allowing severability under California law even where it “re-

quire[d] construing a statutory term to mean something other than what it

sa[id]”). Furthermore, while not dispositive, we know that Costa Mesa

would prefer excision of “insolent” to complete invalidation of § 2-61 as

the City said so at oral argument.

ACOSTA v. CITY OF COSTA MESA 10633

And this makes perfect sense: without a permit there is no

parade, without a parade there is no potential for damage, and

with no risk there is no need for insurance. Here, however, no

other provision and indeed no part of § 2-61 depends upon the

term “insolent” to be operative—there are no specific conse-

quences or punishments for speakers deemed “insolent” as

opposed to those who are simply “disorderly” or “disruptive.”

Therefore we find it “eminently reasonable to suppose that

those who favored the [ordinance] would be happy to achieve

at least some substantial portion of their purpose.” Gerken,

863 P.2d at 699. Indeed, without the word “insolent,” we see

little change in § 2-61’s ability to meet that goal. And the

remaining text of § 2-61 is severable as it “constitutes a com-

pletely operative expression of the legislative intent.” McMa-

han, 26 Cal. Rptr. 3d at 513.

[9] In sum, we hold § 2-61 as written is facially overbroad

and unconstitutional. We also hold, however, that the offen-

sive word—“insolent”—can easily be excised such that the

remaining text can be severed and § 2-61 saved from com-

plete invalidation.

III

We turn next to Acosta’s claim that the district court

improperly granted summary judgment on his as-applied chal-

lenge to § 2-61 in favor of the City on grounds of public

entity immunity to the extent that he sought damages.

A

As a threshold matter, we note that our determination that

§ 2-61 is facially overbroad does not impact the district

court’s or our determination of Acosta’s as-applied chal-

lenges. Facial and as-applied challenges can be viewed as two

separate inquiries. See Bd. of Trs. of State Univ. of New York

v. Fox, 429 U.S. 469, 48286 (1989); Taxpayers for Vincent,

10634 ACOSTA v. CITY OF COSTA MESA

466 U.S. at 800 n.19 (stating that an overbroad regulation of

speech may be facially invalid, even though its application in

the instant case is constitutional).

If a statute is found facially unconstitutional on appeal, then

the district court’s determination that the statute was applied

in a constitutional manner may remain undisturbed. See Cty.

of Houston, Tex. v. Hill, 482 U.S. 451, 457 (1987) (illustrating

that although the Court of Appeals found a statute facially

unconstitutional, the Supreme Court nevertheless left undis-

turbed the district court’s ruling that the statute had not been

applied in an unconstitutional manner). Indeed, standing for

a First Amendment facial challenge does not depend on

whether the complainant’s own activity is shown to be consti-

tutionally privileged. See Bigelow v. Virginia, 421 U.S. 809,

81516 (1975); see also Brockett, 472 U.S. at 503 (collecting

cases that hold “an individual whose own speech may validly

be prohibited or sanctioned is permitted to challenge a statute

on its face because it also threatens others not before the

court”). Thus, we need not reverse the jury’s verdict or the

court’s determination on partial summary judgment on the as-

applied claims against the defendants simply because we find

§ 2-61 facially overbroad. Instead, we will review the merits

of Acosta’s remaining claims on appeal.

B

We review de novo the district court’s decision to grant

summary judgment. Davis v. Cty. of Las Vegas, 478 F.3d

1048, 1053 (9th Cir. 2007). We must determine, viewing the

evidence in the light most favorable to the nonmoving party,

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant sub-

stantive law. Olsen v. Id. State Bd. of Medicine, 363 F.3d 916,

922 (9th Cir. 2004).

On appeal, Acosta challenges the district court’s grant of

partial summary judgment in favor of the City on Acosta’s as-

ACOSTA v. CITY OF COSTA MESA 10635

applied state constitutional claim on grounds of public entity

immunity, but Acosta does not challenge the grant of discre-

tionary act immunity to the Mayor and the Chief of Police

pursuant to California Government Code § 820.2.

California Government Code § 815 provides:

Except as otherwise provided by statute:

(a) A public entity is not liable for an injury, whether

such injury arises out of an act or omission of the

public entity or a public employee or any other per-

son.

(b) The liability of a public entity established by this

part (commencing with Section 814) is subject to

any immunity of the public entity provided by stat-

ute, including this part, and is subject to any

defenses that would be available to the public entity

if it were a private person.

To challenge the district court’s determination, Acosta relies

upon Young v. County of Marin, 241 Cal. Rptr. 169 (Ct. App.

1987) and the Committee Comment to § 815, both of which

carve out an exception to § 815 for constitutionally created

claims.

[10] Under California’s Tort Claims Act “public entities

are immune where their employees are immune, except as

otherwise provided by statute.” Caldwell v. Montoya, 897

P.2d 1320, 1325 (Cal. 1995) (citations omitted). While Acosta

is correct that Young notes the general exception that § 815

does not protect a public entity from liability for constitution-

ally created claims, he does not challenge the district court’s

determinations that (1) his as-applied state-law claim failed to

state a claim because damages were not available to him, or

(2) the Mayor and the Chief of Police are entitled to discre-

10636 ACOSTA v. CITY OF COSTA MESA

tionary act immunity.12 Instead he claims that the district court

extended California case law too far in granting the City pub-

lic entity immunity.

Without any basis for an underlying claim, it is unclear to

us how Acosta’s claim for relief supports an exception to the

rule that a public entity will be immune where the employees

are immune. Acosta makes general statements that Young

controls and therefore his damages claim predicated upon his

as-applied challenge under the California Constitution quali-

fies as a “constitutional violation” of the type excepted from

§ 815. In Young, however, the individual actors were not

granted discretionary act immunity nor did the court address

whether a constitutional tort action for damages should be

recognized. Both of these unchallenged determinations fatally

undermine Acosta’s argument.

[11] Because the Mayor and the Chief of Police are

immune, California’s general principle that a public entity is

immune where its employees are immune controls. And as

there are no independent grounds, either in the language or

history of the section, to support implying a constitutional tort

action, Degrassi, 58 P.3d at 366, Acosta’s mere citation to the

free speech clause does little to bolster his argument that the

City was not entitled to public entity immunity. We affirm the

12

Nor does Acosta argue that we should recognize a constitutional tort

action for damages based upon a violation of article I, § 2 of the California

Constitution. Without deciding the issue, we note that the companion

cases of Degrassi v. Cook, 58 P.3d 360 (Cal. 2002), and Katzberg v.

Regents of University of California, 58 P.3d 339, 350 (Cal. 2002), suggest

that there is no basis to recognize a constitutional tort action for damages

for a violation of article I, § 2. Indeed, much like the plaintiff in Degrassi,

58 P.3d at 366, alternative adequate remedies were readily available to

Acosta under both the California Civil Procedure Code § 1085 and the

Ralph Brown Act, Government Code § 54960. See Cal. Gov’t Code

§ 54960 (“The district attorney or any interested person may commence

an action by mandamus, injunction, or declaratory relief for the purpose

of stopping or preventing violations or threatened violations of this chapter

. . . .”).

ACOSTA v. CITY OF COSTA MESA 10637

district court’s grant of summary judgment on claim two in

favor of the City.

IV

Acosta next argues that the district court erred in granting

the individual police officers summary judgment on his First

and Fourth Amendment claims. He argues that the officers

were not entitled to qualified immunity for any of these

claims. We review de novo a district court’s decision to grant

summary judgment on the basis of qualified immunity. See

Davis, 478 F.3d at 1053.

A

Again, our determination that § 2-61 is facially invalid does

not impact our review of the district court’s determination that

the individual officers are entitled to qualified immunity.

When a city council enacts an ordinance, officers are entitled

to assume that the ordinance is a valid and constitutional exer-

cise of authority. See Grossman v. Cty. of Portland, 33 F.3d

1200, 1209 (9th Cir. 1994). If an officer reasonably relies on

the council’s duly enacted ordinance, then that officer is enti-

tled to qualified immunity. Id. at 1210.

In Grossman, a doctor protested the presence of a warship

carrying nuclear weapons in the Portland harbor and was

arrested pursuant to a city ordinance that prohibited organized

demonstrations without receiving a permit from the city parks

commissioner. Id. at 120203. The ordinance under which the

doctor was arrested was found unconstitutional, but the court

held that the officer was still entitled to qualified immunity,

because the officer correctly believed that the city ordinance

required a permit. Id. at 1210. Further, the court explained

that it was objectively reasonable for the officer to rely on the

constitutionality of the ordinance because it had been “duly

promulgated” by the city council and it was not so obviously

10638 ACOSTA v. CITY OF COSTA MESA

unconstitutional as to require a reasonable officer not to

enforce it. Id.

[12] In the present case, qualified immunity still protects

the officers even though we find the statute upon which they

relied facially unconstitutional. Like the statute in Grossman,

§ 2-61 was duly promulgated by the proper process and was

recognized as a valid portion of the Costa Mesa Municipal

Code. Just as the officer in Grossman reasonably believed the

statute constitutional, the officers here reasonably believed

§ 2-61 was constitutional. During oral argument, strong argu-

ments were presented for the constitutionality of this statute

and it would not be fair to require the officers of Costa Mesa

to be versed in the nuances of the canons of construction such

that they would recognize this statute’s potential constitu-

tional invalidity. Thus, it was objectively reasonable for the

officers to believe the ordinance valid when they removed and

later arrested Acosta for violating § 2-61.

B

[13] “Qualified immunity shields government officials

from civil damages liability unless the official violated a stat-

utory or constitutional right that was clearly established at the

time of the challenged conduct.” Reichle v. Howards, 132 S.

Ct. 2088, 2093 (2012). Assessing whether an official is enti-

tled to immunity is a two prong inquiry. Under the first prong

we ask whether, “[t]aken in the light most favorable to the

party asserting the injury, do the facts alleged show the offi-

cer’s conduct violated a constitutional right?” Saucier v. Katz,

533 U.S. 194, 201 (2001). Under the second prong we exam-

ine whether the right was clearly established. Id. To be

“clearly established, the contours of the right must be suffi-

ciently clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton,

483 U.S. 635, 639 (1987) (internal quotation marks omitted).

In other words, “existing precedent must have placed the stat-

utory or constitutional question beyond debate.” Ashcroft v.

ACOSTA v. CITY OF COSTA MESA 10639

al-Kidd, 131 S. Ct. 2074, 2083 (2011). We may examine

either prong first, considering the circumstances presented on

appeal. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Acosta presents two arguments that the officers are not

entitled to qualified immunity for seizing or arresting him: (1)

he was arrested in retaliation for questioning the officers

about why his time to speak was cut short and why he was

asked to leave the council meeting; and (2) the officers lacked

the requisite level of suspicion to seize or arrest him. Resolu-

tion of both contentions turns on whether probable cause

existed to seize Acosta.

[14] Assuming Acosta’s contention accurately reflects why

he was arrested, Acosta’s claim still fails under prong two of

Saucier.13 In Reichle, the Supreme Court held that it had never

recognized, nor was there a clearly established First Amend-

ment right to be free from a retaliatory arrest that is otherwise

supported by probable cause. Reichle, 132 S. Ct. at 2097 (“[I]t

was not clearly established that an arrest supported by proba-

ble cause could give rise to a First Amendment violation.”).

Furthermore, at the time of the Council meeting, our prece-

dent had previously upheld restrictions on speech at city

council meetings where the speech was actually disruptive

and this remains the law. See Cty. of Norwalk, 900 F.2d at

1425; Kindt, 67 F.3d at 270. Thus, if Acosta’s seizure and

arrest were supported by probable cause, the officers are enti-

tled to qualified immunity.

All seizures, except a narrowly defined intrusion such as

the one in Terry v. Ohio, 392 U.S. 1 (1968), are reasonable

only if the seizure is supported by probable cause. Dunaway

13

The arresting officers testified that Acosta was not under arrest when

they asked him to exit the Council Chambers. The decision to arrest him

was not made until Acosta began physically resisting the officers after he

was removed and was outside chambers. Acosta offered no evidence to

contest these assertions.

10640 ACOSTA v. CITY OF COSTA MESA

v. New York, 442 U.S. 200, 214 (1979). To determine whether

there was probable cause, we look to “the totality of circum-

stances known to the arresting officers, [to determine if] a

prudent person would have concluded that there was a fair

probability that [the defendant] had committed a crime.”

United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986).

While evidence supporting probable cause need not be admis-

sible in court, it must be “legally sufficient and reliable.”

Franklin v. Fox, 312 F.3d 423, 438 (9th Cir. 2002).

[15] Violations of §§ 2-61 and 2-64 are misdemeanors and

a person in violation of either ordinance can be arrested. Sec-

tion 2-61(b)(5) requires every person addressing the Council

to “comply with and obey the lawful orders or directions of

the presiding officer.” Here, the Mayor first indicated that he

did not want Acosta to ask people to stand up in a show of

support, but Acosta defiantly continued to encourage the audi-

ence to stand. Then the Mayor called for a recess to end his

disruptive behavior. Acosta remained at the podium and con-

tinued to speak after the Mayor called the recess.

[16] Given these undisputed facts, we find that probable

cause existed to arrest Acosta for a violation of § 2-61 and

summary judgment was properly granted in favor of the offi-

cers on this claim.14 Thus, even assuming that Acosta was

arrested in retaliation for his remarks, because probable cause

existed for a violation of § 2-61, the officers are still entitled

14

We note that if we were to find that no probable cause existed, the

officers would still be entitled to qualified immunity. An officer is entitled

to immunity where a reasonable officer would believe that probable cause

existed, even if that determination was a mistake. See Anderson, 483 U.S.

at 641; Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1983), overruled on

different grounds by Beck v. Cty. of Upland, 527 F.3d 853, 865 (9th Cir.

2008). Here, given the Mayor’s repeated directives to cease speaking, the

fact that the council meeting was now in recess, and the undisputed fact

that Acosta remained at the podium addressing both the audience and the

council, a reasonable officer would have believed that probable cause

existed to arrest Acosta for a violation of § 2-61.

ACOSTA v. CITY OF COSTA MESA 10641

to qualified immunity, not only for the removal of Acosta

from the chambers, but also for his subsequent arrest. Sum-

mary judgment was properly granted in favor of the officers.

The remaining question we must answer is whether the offi-

cers employed excessive force when enacting the seizure and

arrest.

C

[17] When effecting an arrest, the Fourth Amendment

requires that officers use only such force as is “objectively

reasonable” under the circumstances. Jackson v. Cty. of Brem-

erton, 268 F.3d 646, 651 (9th Cir. 2001). To determine

whether the force used was reasonable, we must balance “the

nature and quality of the intrusion on the individual’s Fourth

Amendment interest against the countervailing governmental

interests at stake.” Graham v. Connor, 490 U.S. 386, 39697

(1989) (internal quotation marks omitted). Furthermore, the

reasonableness must be judged from the perspective of a rea-

sonable officer on the scene and allow for the fact that offi-

cers often have to make split-second decisions under evolving

and uncertain circumstances. Jackson, 268 F.3d at 651.

[18] We find that there was no excessive force here as a

matter of law. The undisputed evidence shows that the offi-

cers used only the force reasonably necessary to remove

Acosta from the meeting and no reasonable jury could find

excessive force as a matter of law based on that evidence. The

video submitted by Acosta shows that he did not leave the

podium when first asked to step down and the crowd began

yelling both in support and opposition to Acosta. He also con-

cedes that he did not leave the podium immediately. Consid-

ering the volatility of the situation and the presence of a large

crowd of hostile demonstrators, the amount of force the offi-

cers used—grabbing Acosta’s arms and placing him in an

upper body control hold—was reasonable. Furthermore, when

later placing Acosta under arrest, Acosta was kicking and

flailing his body to actively resist the police. Holding him by

10642 ACOSTA v. CITY OF COSTA MESA

his limbs to control him and prevent him from injuring an

officer was also not unreasonable or excessive. Therefore,

Acosta fails to meet prong one of Saucier and qualified

immunity was properly granted to the officers on Acosta’s

excessive force claim.

V

Acosta asserts that it was error for the district court to

admit his December 2005 remarks before the City Council in

which he called the Mayor a “fucking racist pig.” The district

court denied Acosta’s motion in limine to exclude these

remarks, concluding that they were relevant to the reasonable-

ness of the Mayor’s conduct at the January 2006 meeting in

recalling how Acosta behaved when addressing the Council at

its December meeting. Acosta argues the district court further

erred by failing to give his suggested limiting instruction:

Evidence of the plaintiff’s speech or conduct at the

December 6, 2005 meeting cannot be considered for

the purpose of proving that he is disruptive and that

he acted in conformity with that character on January

3, 2006.

The district court rejected this argument in its order denying

Acosta’s motion for a new trial on grounds that Acosta failed

to raise an objection to the error pursuant to Federal Rule of

Civil Procedure 51(c)(1). The court had previously rejected

the suggested limiting instruction finding the December state-

ment “absolutely an act in conformity” and “highly relevant”

to the January 3, 2006, meeting.

A

We accord the district court “wide discretion in determin-

ing the admissibility of evidence under the Federal Rules.”15

15

The remaining three issues relate to Acosta’s as-applied challenge that

was before the jury. For the reasons set forth in Part III A, our determina-

tion that § 2-61 is facially overbroad does not require reversal of the dis-

trict court on any of these issues.

ACOSTA v. CITY OF COSTA MESA 10643

United States v. Abel, 469 U.S. 45, 54 (1984). “Assessing the

probative value of [the proffered evidence], and weighing any

factors counseling against admissibility is a matter first for the

district court’s sound judgment under Rules 401 and 403

. . . .” Id. Furthermore, to reverse on the basis of an erroneous

evidentiary ruling, we must conclude that the error was preju-

dicial. See Harper v. Cty. of Los Angeles, 533 F.3d 1010,

1030 (9th Cir. 2008).

[19] Assuming that Acosta’s December 2006 remarks were

admitted to show conformity with a disruptive character,

Acosta has failed to show prejudice resulting from this error.16

Three videos depicting exactly how Acosta acted at the Janu-

ary 3, 2006, meeting were admitted into evidence. Having the

additional videos detracts from both the significance of the

December statements in comparison to the January evidence

before the jury and any potential prejudice to the outcome of

the trial. Furthermore, the jury was specifically instructed that

conduct—and not words—could be the only basis for finding

whether Acosta “substantially disrupted” the meeting. Given

the overwhelming evidence of Acosta’s actual disruptive

behavior at the January meeting and because the instructions

as given included limitations on how pure speech could not be

used to support a finding that Acosta was actually disruptive,

there is no reason to believe that the outcome of his trial was

affected by the admission of the evidence. Thus, Acosta fails

to show prejudice caused by the admission of the statement

and we affirm the district court’s denial of the motion for new

trial.

16

It is questionable whether the evidence was in fact offered to prove a

character trait. The district court initially admitted the evidence as relevant

to the Mayor’s state of mind when exercising his discretion in enforcing

the City’s ordinances and Acosta points to nowhere in the trial record

where the appellees actually argue that Acosta had a disruptive character.

It ignores common experience to suggest the presiding officer would not

have been influenced by his knowledge of Acosta from the December

address. Judges certainly experience this in their courtrooms when lawyers

approach the podium who are known to the court from prior appearances.

10644 ACOSTA v. CITY OF COSTA MESA

B

We also review the district court’s rejection of a proposed

jury instruction for an abuse of discretion. See Jones v. Wil-

liams, 297 F.3d 930, 93435 (9th Cir. 2002); Duran, 221 F.3d

at 113031. Any error in instructing the jury in a civil case

does not require reversal if it is harmless. See Altera Corp. v.

Clear Logic, Inc., 424 F.3d 1079, 1087 (9th Cir. 2005).

Acosta argues the court erred by rejecting Acosta’s instruc-

tion for the reason that the contested evidence was “absolutely

an act in conformity, and it is highly relevant to Mr. Acosta’s

actions on January 3rd, 2006.” See Fed. R. Evid. 404(a)(1)

(“Evidence of a person’s character or character trait is not

admissible to prove that on a particular occasion the person

acted in accordance with the character or trait.”). If the district

court’s refusal to give the instruction was error, it was harm-

less because, as we have already noted, the district court pro-

vided an instruction that made the distinction between pure

speech and speech that accompanies conduct. The instructions

further specifically noted that Acosta’s claims derived from

the January 3, 2006, meeting. When the subsequent instruc-

tions refer to conduct, the reference was to Acosta’s conduct

at the January 3, 2006, meeting.

[20] Considering the jury instructions as a whole, the jury

was properly instructed to consider only Acosta’s conduct at

the January 3, 2006, meeting when deciding whether he

caused an actual disturbance. Thus, any error was harmless.

This conclusion is further bolstered by ample evidence in the

record that supports the jury’s finding that Acosta actually did

disrupt the January 3, 2006, meeting by defying the Mayor’s

order that he cease speaking.

VI

Next, Acosta argues that the district court erred in denying

his renewed motion for judgment as a matter of law. He

ACOSTA v. CITY OF COSTA MESA 10645

argues that there was not substantial evidence to support the

jury’s verdict on his First Amendment claims. We review de

novo the district court’s grant or denial of a renewed motion

for judgment as a matter of law. See Theme Promotions, Inc.

v. News Am. Mktg. FSI, 546 F.3d 991, 999 (9th Cir. 2008).

We ask whether the evidence, construed in the light most

favorable to the nonmoving party permits only one reasonable

conclusion, and that conclusion is contrary to the jury’s ver-

dict. See Martin v. Cal. Dep’t of Veterans Affairs, 560 F.3d

1042, 1046 (9th Cir. 2009). We must also draw all reasonable

inferences in favor of the defendants, keeping in mind that

“credibility determinations, the weighing of evidence, and the

drawing of legitimate inferences from the facts are jury func-

tions, not those of a judge.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 150 (2000) (internal quotation

marks omitted).

[21] Here, the jury returned a verdict in favor of the defen-

dants. The evidence presented at trial is easily interpreted to

support a reasonable jury’s determination that the Mayor neu-

trally and constitutionally applied the City’s decorum rules to

Acosta. Contrary to Acosta’s assertion that the evidence

shows the Mayor only feared a disruption and not that an

actual disruption occurred, the jury could have found that the

meeting was actually disrupted by Acosta addressing the audi-

ence and the audience’s reaction to his urging them to stand.

Indeed, the Mayor called an unplanned recess to diffuse the

disruption. Acosta was not entitled to judgment as a matter of

law and we affirm the district court’s denial of his post-trial

motion.

VII

Finally, Acosta appeals the district court’s denial of his

request for a declaration that the defendants failed to apply

§§ 2-61 and 2-64 in a constitutional manner at the January 3,

2006, meeting. The district court’s decision to deny equitable

relief is reviewed for an abuse of discretion. See Molski v.

10646 ACOSTA v. CITY OF COSTA MESA

Foley Estates Vineyard & Winery, LLC, 531 F.3d 1043, 1046

(9th Cir. 2008).

The Seventh Amendment provides that “no fact tried by a

jury shall be otherwise re-examined in any Court of the

United States, than according to the rules of the common

law.” U.S. Const. amend. VII. In our circuit, “it would be a

violation of the Seventh Amendment right to jury trial for the

court to disregard a jury’s finding of fact.” Floyd v. Laws, 929

F.2d 1390, 1397 (9th Cir. 1991). “Thus, in a case where legal

claims are tried by a jury and equitable claims are tried by a

judge, and the claims are ‘based on the same facts,’ in decid-

ing the equitable claims ‘the Seventh Amendment requires the

trial judge to follow the jury’s implicit or explicit factual

determinations.’ ” L.A. Police Protective League v. Gates,

995 F.2d 1469, 1473 (9th Cir. 1993) (quoting Miller v. Fair-

child Indus., 885 F.2d 498, 507 (9th Cir. 1989)).

[22] Jury instructions numbers 14 and 15 specifically

instructed the jurors to assess liability against the Mayor and

the City upon finding that either or both deprived Acosta of

his rights under the First Amendment. Instruction number 27

also stated that in enforcing §§ 2-61 and 2-64, the mayor

could “bar a speaker from further audience . . . only if the

speaker’s activity itself — and not the viewpoint of the activi-

ty’s expression — substantially impaired the conduct of the

meeting.” The jury rendered a verdict for the defendants. As

such, the jury necessarily found that Acosta caused an actual

disturbance. Considering this factual finding, it would be

incongruous to declare that the defendants enforced the ordi-

nances in an unconstitutional manner. We affirm the district

court’s denial of equitable relief.

VIII

Section 2-61 is facially overbroad and therefore invalid.

However, the offensive word—“insolent”—can be excised

from § 2-61(a) and the remainder of the ordinance is sever-

ACOSTA v. CITY OF COSTA MESA 10647

able and operative. As to Acosta’s remaining claims, we find

no reversible error. The evidence amply supported the jury’s

verdict that Acosta caused an actual disruption of the City

Council meeting.

REVERSED in part and AFFIRMED in part. The par-

ties will bear their own costs on appeal.

N.R. SMITH, Circuit Judge, concurring in part and dissenting

in part:

The majority correctly sets forth the rule that, under Cali-

fornia law, an unconstitutional portion of a statute can only be

severed from statutory text if it is grammatically, functionally,

and volitionally severable, regardless of whether the code

contains a severance clause. McMahan v. City & Cnty. of San

Francisco, 26 Cal. Rptr. 3d 509, 513 (Ct. App. 2005); MHC

Fin. Ltd. P’ship Two v. City of Santee, 23 Cal. Rptr. 3d 622,

639 (Ct. App. 2005). “All three criteria must be satisfied” for

text to be severable from the remainder of the statute. McMa-

han, 26 Cal. Rptr. 3d at 513. However, because California

precedent makes clear that none of these criteria are met in

this case, I must respectfully dissent from Part II.B of the

opinion. Instead, I conclude that Section 2-61 is unconstitu-

tional in its entirety, rather than just in part.

I.

1. Grammatical Severability

Text is grammatically, or “mechanically severable” only

when it constitutes “physically separate sections of the propo-

sition.” Santa Barbara Sch. Dist. v. Superior Court, 530 P.2d

605, 650 (Cal. 1975). Therefore, the majority is mistaken that

statutory text embedded in the middle of a sentence is gram-

matically severable under California law. The fact that “inso-

10648 ACOSTA v. CITY OF COSTA MESA

lent” has a distinct meaning (a conclusion with which I agree)

does not mean that it is mechanically distinct in a way that

makes it grammatically severable. In fact, the only cases

where California courts have determined that text was gram-

matically severable involved text that was an entirely different

sentence or section of the statute, making it grammatically

“complete and distinct.” People’s Advocate, Inc. v. Superior

Court, 181 Cal. App. 3d 316, 331 (Ct. App. 1986); see

Gerken v. Fair Political Practices Comm’n, 863 P.2d 694,

698 (Cal. 1993) (“Petitioners concede the various remaining

parts of Proposition 73 meet the” grammatically separable

requirement for the severability test, because the severed por-

tion was an entirely separate provision of the statute); Calf-

arm Ins. Co. v. Deukmejian, 771 P.2d 1247, 1256 (Cal. 1989)

(the invalid provision in this case was “distinct and separate”

and could be “removed as a whole without affecting the word-

ing of any other provision” (emphasis added)); McMahan, 26

Cal. Rptr. 3d at 513 (“appellants concede[d] the invalid fund-

ing mandate [was] grammatically severable” because it was a

completely separate portion of the statute); Barlow v. Davis,

85 Cal. Rptr. 2d 752, 757 (Ct. App. 1999) (the invalid portion

could be severed because it constituted an “entirely separate

statute grammatically and mechanically from the invalid sub-

stantive provisions”); Briseno v. City of Santa Ana, 8 Cal.

Rptr. 2d 486, 490 (Ct. App. 1992) (the unconstitutional word

did “not even appear in [the] section” at issue); Santa Barbara

Sch. Dist., 530 P.2d 605 (the text severed was a separate and

distinct statutory provision).

The majority cites to no California cases that have allowed

one word (and the two surrounding commas) in the middle of

a sentence to be grammatically severed. However, at least two

California cases dealing with a similar issue refused to sever

one unconstitutional word from a sentence. See Cnty of

Sonoma v. Superior Court, 93 Cal. Rptr. 3d 39 (Ct. App.

2009) (refusing to sever the word “unanimous” from the mid-

dle of text); Long Beach Lesbian & Gay Pride, Inc. v. City of

Long Beach, 14 Cal. App. 4th 312, 326 (1993) (refusing to

ACOSTA v. CITY OF COSTA MESA 10649

follow the city’s request of replacing “may” with “shall” in

the middle of a statutory sentence). Indeed, in City of Long

Beach, the court determined that neither the offending word

“may” nor the remaining unconstitutional section could be

removed to save the ordinance. Id. at 326-327. Notwithstand-

ing the majority’s attempts to distinguish these cases, the fact

still remains that the California courts were unwilling to sever

one unconstitutional word from a sentence in either case.

To alter subsection (a) as the majority desires would be a

modification that contravenes California’s prohibition against

“affecting the wording of any other provision.” Calfarm Ins.

Co., 771 P.2d at 1256; accord Barlow, 85 Cal. Rptr. 2d at

757; Maribel M. v. Superior Court, 72 Cal. Rptr. 2d 536, 541

(Ct. App. 1998). Thus, while the distinct section can be “sepa-

rated by [a] paragraph, sentence, clause, phrase or even single

words,” Barlow, 85 Cal. Rptr. 2d at 757, a single word cannot

itself be removed from the middle of a clause or phrase to be

grammatically severable.

Furthermore, the specific language of “the severability

clause [is] considered in conjunction with the separate and

discrete provisions of” the text to determine whether the

“grammatical component of the test for severance is met.” Id.

Here, the City’s severability clause only states that “sections,

paragraphs, clauses and phrases of this Code are severable,”

rather than individual words. City of Costa Mesa’s Municipal

Code § 1-32. Therefore, the severability clause clearly indi-

cates that the City did not intend something less than a phrase

to be grammatically severable, which is also relevant for voli-

tional severability (discussed below).

2. Functional Severability

The majority is correct when it asserts that the constitution-

ally infirm text must not be necessary to the ordinance’s oper-

ation and purpose for text to be functionally severable. Maj.

Op. 10629-30 (citing City of Long Beach, 14 Cal. App. 4th

10650 ACOSTA v. CITY OF COSTA MESA

312). However, the testimony of the Chief of Police makes

clear that city officials relied on the word “insolent” as a key

part of Section 2-61’s purpose of allowing the prohibition of

constitutionally protected speech. For instance, when asked

whether Section 2-61 “allowed [the police] to arrest the per-

sons insolent,” the Police Chief answered, “Yes.” When asked

whether Section 2-61 “was enforced in Costa Mesa” such that

it “would be [a] violation[ ] of the municipal code” to make

“insulting remarks,” the Police Chief also answered “Yes.”

In City of Long Beach, an official charged with enforcing

the ordinance similarly testified that the ordinance could be

enforced in an unconstitutional way. 14 Cal. App. 4th at 326.

The California Court of Appeal explained that when “[f]aced

with this ambivalence by the official charged with enforcing

the section, [courts] cannot depart from its plain language.”

Id. (emphasis added). We can do no different here.

3. Volitional Severability

For volitional severability, “[t]he test is whether it can be

said with confidence that the [enacting body]’s attention was

sufficiently focused upon the parts to be severed [i.e., vali-

dated] so that it would have separately considered and

adopted them in the absence of the invalid portions.” Gerken,

863 P.2d at 699 (alterations omitted). In this case, as in

McMahan, the “text of the initiative underscore[s] its primary

objective.” 26 Cal. Rptr. 3d at 514. Here, not only does sub-

section (a) of Section 2-61 prohibit “insolent” speech, but

subsection (b) prohibits “personal, impertinent, profane, inso-

lent, or slanderous remarks” in part (1), as well as “insolent,

or disturbing action” in part (6). Because so much of Section

2-61 is aimed at prohibiting expressive speech, and this lan-

guage is interwoven with language prohibiting disturbances,

it is not at all clear that the enacting body’s “attention was

sufficiently focused” on the other purpose of only prohibiting

disruptive conduct such that this ordinance would have still

ACOSTA v. CITY OF COSTA MESA 10651

been passed in its constitutional form. See Gerken, 863 P.2d

at 699.

Under the volitional severability analysis, courts must also

“examin[e] the intended function of [the] particular statutory

scheme.” Barlow, 85 Cal. Rptr. 2d at 758; Briseno, 8 Cal.

Rptr. 2d at 490 (analyzing the “overall statutory scheme” to

determine legislative intent). Section 2-61 clearly prohibits

expressive speech through the word “insolent,” whereas the

majority aptly notes that other City ordinances merely pro-

hibit speech that “substantially delays, interrupts or disturbs”

a meeting. Maj. Op. 10651 (citing Sections 2-60, 2-64). In

previous cases, we have explained that, when the enacting

body uses language that is distinct from similar statutes, we

must give meaning to that distinction. Planned Parenthood of

Idaho, Inc. v. Wasden, 376 F.3d 908, 937 (9th Cir. 2004).

Thus, in Wasden, we held that “the fact that Idaho chose to

provide a novel definition, narrower than those given in more

than half of its sister states, obligates us to consider what it

meant by making that considered choice.” Id. Similarly here,

use of appropriate qualifying language by the City of Costa

Mesa in Sections 2-60 and 2-64 demonstrates that the City

knew how to effectuate an ordinance aimed merely at pre-

venting meeting disturbances. The City’s choice to go further

and prohibit “insolent” speech under Section 2-61 demon-

strates a meaningful difference that we cannot ignore, indicat-

ing that the City intended the prohibition of “insolence” to be

an important aspect of Section 2-61.

The majority also relies on Metromedia, Inc. v. City of San

Diego, 649 P.2d 902 (Cal. 1982), and Katz v. Children’s

Hosp. of Orange County, 28 F.3d 1520 (9th Cir. 1994), for the

proposition that courts can sever a portion of a statute, even

when that is contrary to the legislature’s conscious purpose in

enacting the statute. Maj. Op. 10632 n.11. However,

Metromedia, Inc. actually stands for the opposite proposition.

In Metromedia, Inc., the California Supreme Court explained

that “we know of no precedent for holding that a clause of a

10652 ACOSTA v. CITY OF COSTA MESA

statute, which as enacted is unconstitutional, may be changed

in meaning in order to give it some operation, when admit-

tedly it cannot operate as the Legislature intended.” 649 P.2d

at 908 n.10 (emphasis added) (quoting People v. Perry, 21 P.

423 (Cal. 1889)). Thus, the court refused to sever portions of

a statute where it was “doubtful whether the purpose of the

original ordinance is served by a truncated version” and the

severance would “leave the city with an ordinance different

than it intended, one less effective in achieving the city’s

goals.” Id. at 909. Furthermore, in Katz, the Ninth Circuit was

willing to interpret the statutory language “to mean something

other than what it says,” only because a previous California

court had already interpreted the statute in that way. 28 F.3d

at 1531.

The majority’s reliance on the City’s offhanded remark in

favor of severance at oral argument (an argument not briefed

or raised below) is unavailing, because California courts do

not pay attention to a party’s litigation strategy position

regarding the party’s preferences for a statute. In fact, in most

cases it is likely that where California courts decided an

invalid portion of a statute was not severable, the government

entity party to the litigation would have preferred severance.

See, e.g., Cnty. of Sonoma, 93 Cal. Rptr. 3d 39; City of Long

Beach, 14 Cal. App. 4th at 326. Rather, California courts look

to what the intentions were of the enacting body at the time

of enactment. See Gerken, 863 P.2d at 699.

II.

Even if the majority is correct, that Section 2-61 meets one

or even two of California’s three severability criteria, the

majority’s decision to sever “insolent” cannot be sustained.

The failure of a statute to meet any one criteria (grammatical,

functional, or volitional severability) provides an independent

prohibition on a court’s ability to sever text from a statute.

McMahan, 26 Cal. Rptr. 3d at 513.

ACOSTA v. CITY OF COSTA MESA 10653

Further, other California cases have cautioned the use of

statutory tools such as severability in the First Amendment

context when an overbroad statute is at issue. For instance, in

People v. Rodriguez, the court explained that “gradually cut-

ting away the unconstitutional aspects of a statute by invali-

dating its improper applications case by case—does not

respond sufficiently to the peculiarly vulnerable character of

activities protected by the first amendment.” 77 Cal. Rptr. 2d

676, 683 (Ct. App. 1998). For an “overbroad law hangs over

people’s heads like a Sword of Damocles.” Id. (internal quo-

tation marks and alterations omitted); see also In re Berry,

436 P.2d 273, 286 (Cal. 1968) (finding “the doctrine of sever-

ability . . . inapplicable” where “a provision encompasses both

valid and invalid restrictions of free speech and its language

is such that a court cannot reasonably undertake to eliminate

its invalid operation by severance or construction” despite the

existence of a severability clause). Therefore, I conclude that

the word “insolent” cannot be severed from the middle of the

phrase in subsection (a).

The majority agrees that subsection (b) of § 2-61 can only

pass constitutional muster if it is somehow limited by subsec-

tion (a). As in City of Long Beach, 14 Cal. App. 4th at 327,

once subsection (a) is struck down as constitutionally infirm,

this results in the “remov[al of] the hub from [the ordinance’s]

wheel, and without it the spokes cannot stand.” Id. Thus, I

conclude that the invalidation of subsection (a) results in the

constitutional collapse of Section 2-61 in its entirety.