Benito Acosta v. City of Costa Mesa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENITO ACOSTA, No. 10-56854

Plaintiff-Appellant,

D.C. No.

v. 8:06-cv-00233-

DOC-MLG

CITY OF COSTA MESA; ALLAN

MANSOOR, Mayor of the City of

Costa Mesa, in his official and OPINION

individual capacities,

Defendants-Appellees,

JOHN HENSLEY, Chief of Police,

Costa Mesa Police Department;

DAVID ANDERSEN; DAVID DEHUFF;

JOHN DOEZIE; BRYAN GLASS;

DANIEL GUTH; DAVID MAKIYAMA;

JEFF TOBIN; DEREK TRUSK; in their

official and individual capacities,

Defendants.

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 May 3, 2013

2 ACOSTA V. CITY OF COSTA MESA

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

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

Per Curiam Opinion

SUMMARY**

Civil Rights

The panel reversed in part and affirmed in part the district

court’s judgment entered following a jury verdict in this

action challenging Costa Mesa Municipal Code § 2-61, which

makes it a misdemeanor for members of the public who speak

at City Council meetings to engage in “disorderly, insolent,

or disruptive behavior.”

Reversing the district court, the panel held that the statute

was facially invalid because it failed to limit proscribed

activity to only actual disturbances. Rather, the statute

unnecessarily swept a substantial amount of non-disruptive,

protected speech within its prohibiting language. The panel

further determined that because neither the term “insolent” in

subsection (a), nor the terms “personal, impertinent, profane,

insolent” in subsection (b)(1) could be severed from § 2-61,

the entire section needed to be invalidated.

*

The Honorable Dee V. Benson, District Judge for the U.S. District

Court for the District of Utah, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ACOSTA V. CITY OF COSTA MESA 3

The panel nevertheless held that § 2-61 was

constitutionally applied to plaintiff because the jury implicitly

found that his behavior actually disrupted the Council

meeting. The panel further found that officers did not

employ excessive force when enacting plaintiff’s seizure and

arrest and used only the force reasonably necessary to remove

plaintiff from the meeting. The panel also held that plaintiff

failed to show prejudice by the admission of his prior

statement into evidence and that the district court did not err

by rejecting plaintiff’s proposed jury instruction.

COUNSEL

Belinda E. Helzer (argued), ACLU Foundation of Southern

California, Orange, California; Hector O. Villagra and Peter

J. Eliasberg, ACLU Foundation of Southern California, Los

Angeles, California, for Plaintiff-Appellant.

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

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

Defendants-Appellees.

OPINION

PER CURIAM:

Costa Mesa Municipal Code § 2-61 makes it a

misdemeanor 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

4 ACOSTA V. CITY OF COSTA MESA

dismissal of his First Amendment facial challenge to the

ordinance. He also appeals the district court’s grant of partial

summary judgment 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 evidence, 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 contrary to the Mayor’s.

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

actual disturbances, we reverse the district court’s

constitutionality ruling and find the statute facially invalid.

Moreover, since the unconstitutional portions of the

ordinance cannot be severed from the remainder of the

section, we invalidate the entire section. Nevertheless, § 2-61

was constitutionally applied to Acosta, because the jury

implicitly found that his behavior actually disrupted the

Council meeting. Accordingly, we affirm the remainder of

the district court’s determinations.

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

ACOSTA V. CITY OF COSTA MESA 5

“Mayor”), Chief of Police John Hensley, and several

individual police officers.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 Mun. 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 misdemeanor. Meetings are recorded by video cameras

and the relevant recordings are part of the record on appeal.

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

Hensley directed Acosta’s removal when he failed to cease his disruptive

activities 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.” Coal.

of Labor, Agric. & Bus. v. City 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 . . . .”

6 ACOSTA V. CITY OF COSTA MESA

In December 2005 the Mayor proposed that the City enter

into an agreement with Immigration and Customs

Enforcement (“ICE”) to have its police officers designated

immigration agents with the authority to enforce federal

immigration laws in the City. The proposal was placed on the

City Council’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

opposition to the proposal. When Acosta’s time came to

speak, the video recordings show that he was visibly

emotional and agitated.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.

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

introduced 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. Appellees 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 7

After receiving local and national media attention, the

City Council again placed the ICE agreement on the agenda

of the next regular Council meeting on January 3, 2006. Prior

to that meeting, groups supporting and opposing the

agreement demonstrated outside City Hall. Council

Chambers was filled to overflow capacity and additional

demonstrators remained outside. During the public comment

portion of the meeting a total of twenty-five speakers

addressed the City Council, fifteen 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

audience 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 representative; 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

4

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

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

presentations, 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.”

8 ACOSTA V. CITY OF COSTA MESA

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

facing 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 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

officers 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

ACOSTA V. CITY OF COSTA MESA 9

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, however, they encountered a large crowd and

Acosta increased his efforts to resist the officers. When the

officers attempted to 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 moving 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 Amendment 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 California Constitution that sought

10 ACOSTA V. CITY OF COSTA MESA

damages. At the district court and here, the core of Acosta’s

argument is that § 2-61 unconstitutionally 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

district court dismissed without prejudice Acosta’s facial

challenges 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 disrupted 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 monetary damages and granted the City public

entity immunity for Acosta’s as-applied challenges under the

California Constitution 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

challenge 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.

ACOSTA V. CITY OF COSTA MESA 11

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 these claims.5 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

Acosta first argues that the district court erred when it

dismissed his claim that § 2-61 is facially invalid. We review

the district court’s dismissal of a claim de novo. Kennedy v.

S. Cal. Edison Co., 268 F.3d 763, 767 (9th Cir. 2001). We

also analyze the constitutionality of a statute de novo.

Planned Parenthood of S. Ariz. v. Lawall, 307 F.3d 783, 786

(9th Cir. 2002).

5

We can determine that the jury made this finding by analyzing the jury

instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury

is presumed to follow its instructions.”). Jury Instruction No. 27 provided

that “In enforcing Costa Mesa Municipal Code sections 2-61 and 2-64, the

defendant Alan Mansoor may bar a speaker from further audience before

the City council only if the speaker’s activity itself . . . substantially

impairs the conduct of the meeting.” Jury Instruction No. 28 further

provided that “Whether a given instance of alleged misconduct

substantially impairs the effective conduct of a meeting depends on the

actual impact of that conduct on the course of the meeting.” Finally, Jury

Instruction No. 29 stated that “A speaker may not be removed from a

meeting solely because of the use of profanity unless the use of profanity

actually disturbs or impedes the meeting.” Thus, to conclude that Mayor

Mansoor did not violate Acosta’s First Amendment rights, the jury must

have concluded that Acosta’s conduct substantially impaired the conduct

of the meeting.

12 ACOSTA V. CITY OF COSTA MESA

On appeal, Acosta argues that § 2-61 is facially invalid,

because it is overbroad. Section 2-61 states:

Propriety of conduct while addressing the

council.

(a) The presiding officer at a meeting may in

his or her discretion bar from further

audience before the council, or have

removed 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 council 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

ACOSTA V. CITY OF COSTA MESA 13

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.

Costa Mesa, Cal., Mun. Code § 2-61 (2012) (emphasis

added). We will invalidate this section as “overbroad,”

violating the First Amendment, if “a substantial amount of its

applications are unconstitutional, judged in relation to [its]

plainly legitimate sweep.” United States v. Stevens, 130

S. Ct. 1577, 1587 (2010) (internal quotation marks omitted).

Although “[t]he concept of ‘substantial overbreadth’ is not

readily reduced to an exact definition,” it generally means

that we will not invalidate a statute on its face unless “there

[is] a realistic danger that the statute itself will significantly

compromise recognized First Amendment protections of

parties not before the Court.” City Council v. Taxpayers for

Vincent, 466 U.S. 789, 800–01 (1984). An ordinance that

governs the decorum of a city council meeting is “not facially

overbroad [if it] only permit[s] a presiding officer to eject an

attendee for actually disturbing or impeding a meeting.”

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

2010) (en banc) (emphasis added). However, actually

disturbing or impeding a meeting means “[a]ctual disruption”

of the meeting; a municipality cannot merely define

14 ACOSTA V. CITY OF COSTA MESA

disturbance “in any way [it] choose[s],” e.g., it may not deem

any violation of its rules of decorum to be a disturbance. Id.

With that foundation, “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.” Stevens, 130 S. Ct. at 1587

(internal quotation marks omitted). In doing so, we must

apply California’s rules of statutory construction, as no courts

have previously construed § 2-61. Cassell v. Kolb (In re

Kolb), 326 F.3d 1030, 1037 (9th Cir. 2003). Thus, we must

give the ordinance’s language “its usual, ordinary import and

accord[ ] significance, if possible, to every word, phrase and

sentence in pursuance of the legislative purpose.” Dyna-Med,

Inc. v. Fair Emp’t. & Hous. Comm’n, 43 Cal. 3d 1379,

1386–87 (1987). In doing so, we must also apply two

principles: “First, the enactment may be validated if its terms

are reasonably susceptible to an interpretation consistent with

the [C]onstitution. Second, [we] should construe the

enactment so as to limit its effect and operation to matters

that may be constitutionally regulated or prohibited.” People

v. Superior Court (Anderson), 199 Cal. Rptr. 150, 151 (Ct.

App. 1984).

Applying these principles, we conclude that Costa Mesa

Municipal Ordinance § 2-61 is overbroad on its face, and that

no reasonable construction can eliminate its overbreadth.

Further, the overbroad terms in § 2-61 are not severable under

California law. Therefore, we must invalidate § 2-61 as

presently written in its entirety.

ACOSTA V. CITY OF COSTA MESA 15

A

First, we must determine if we can construe § 2-61 such

that it will not reach a “substantial amount of constitutionally

protected conduct.” City of Houston v. Hill, 482 U.S. 451,

459 (1987). Acosta argues that the language of § 2-61(b)(1)

makes all of § 2-61 overbroad, so we will begin our analysis

there. Section 2-61(b)(1) prohibits “any personal,

impertinent, profane, insolent, or slanderous remarks.”

Acosta argues that this prohibition impermissibly “regulates

protected speech based on the viewpoints expressed,” because

“favorable, complimentary, or positive speech” would not

violate the ordinance. If subsection (b)(1) does reach such

speech, it is unconstitutional. See Rosenberger v. Univ. of

Va., 515 U.S. 819, 828–29 (1995). However, before arriving

at that conclusion, we must analyze whether § 2-61 can be

construed to avoid the constitutional issue subsection (b)(1)

introduces. Anderson, 199 Cal. Rptr. at 151.

The City suggests three possible constructions of the

ordinance to solve the constitutional defect. First, subsection

(a) should be read as a limit on subsection (b) and subsection

(a) should be read to require that speech cause an actual

disruption before the presiding officer may stop it. Second,

subsection (b) should be read as a list of “examples of the

types of actions, as opposed to mere words, that might

constitute disruptive behavior” in subsection (a).6 Third,

6

The ordinance may reach protected speech, even though it uses the

words “action” or “behavior.” The Supreme Court has frequently rejected

attempts to regulate speech under the guise of regulating conduct. See

Cohen v. California, 403 U.S. 15, 18 (1971) (“The only ‘conduct’ which

the State sought to punish is the fact of communication.”); Texas v.

Johnson, 491 U.S. 397, 416 (1989) (“The distinction between written or

spoken words and nonverbal conduct . . . is of no moment where the

16 ACOSTA V. CITY OF COSTA MESA

subsection (b)(6) should be read as a limitation on the entire

section (the City offered this reading of the statute at oral

argument). We discuss each of these alternatives below.

1

Because the City’s first and second potential

constructions are not reasonable ways to read the statute, we

cannot adopt them. Both depend on a relationship between

subsection (a) and subsection (b) that the text of the ordinance

does not support. Specifically, the City suggests that we read

subsection (b) in connection with, and as limited by,

subsection (a). However, no language in subsection (a)

indicates that it limits subsection (b) in all cases, whenever

subsection (b) is violated. On the contrary, by declaring the

listed speech and behavior “unlawful,” the City gave

subsection (b) a legal effect independent of subsection (a).

Even though subsections (a) and (b) are part of the same

statutory section, we refuse to forge a connection between

them that goes beyond what the text of the ordinance permits.

The text of § 2-61 is different from the ordinance at issue

in White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990).

There, the court concluded that the following ordinance was

susceptible to a limiting construction, though the first

sentence (which parallels the language of subsection (b)(1) in

the instant case) was unconstitutional on its own:

nonverbal conduct is expressive, as it is here, and where the regulation of

that conduct is related to expression, as it is here.” (emphasis added)).

Thus, because certain “remarks” or “behavior” can be unlawful merely

because of their expressive nature, the conclusion that the ordinance

reaches only “conduct” is not a narrowing construction that will save it.

ACOSTA V. CITY OF COSTA MESA 17

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

Council, 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 presiding officer

or a majority of the Council, be barred from

further audience before the Council during

that meeting . . . .

900 F.2d at 1424 (emphasis added). The court determined

that the second sentence in the section (beginning “Any

person who makes . . .”) could readily be interpreted to

modify the overbroad first sentence, because it included

adjectives that clearly referred to the speech described in the

first sentence (“such remarks” and “other disorderly

conduct”). Id. Because the second sentence modified the

first, the series of qualifiers indicating that the prohibited

conduct must be conduct which “disrupts, disturbs or

otherwise impedes the orderly conduct of any Council

meeting” limited the potential applications of the statute to

speech that caused an actual disturbance. Id. The

requirement of actual disruption meant that the ordinance was

valid.

Like the ordinance in White, § 2-61 prohibits the making

of “personal, impertinent, profane, insolent or slanderous

remarks.” That, without limitation, is an unconstitutional

prohibition on speech. However, unlike the ordinance in

18 ACOSTA V. CITY OF COSTA MESA

White, § 2-61 is not “readily susceptible” to a narrowing

construction that would render it constitutional. No textual

link ties subsection (a) to subsection (b) like the second

sentence of the ordinance in White was tied to the first.

In addition to being grammatically independent,

subsections (a) and (b) appear to have distinct purposes.

Subsection (a) authorizes a meeting’s presiding officer to deal

with a person who engages in certain types of conduct when

addressing the City Council. Subsection (b) prohibits persons

who are addressing the City Council from engaging in certain

types of conduct. Subsections (a) and (b) are related, because

(b) provides the presiding officer with a non-exclusive list of

grounds for exercising the authority that subsection (a)

confers on him or her; the text does not support reading these

two sections together any other way. Thus, subsections (a)

and (b) can only fairly be read together when two predicates

are satisfied: (1) a person addressing the City Council

engages in conduct that subsection (b) prohibits, and (2) the

presiding officer takes adverse action against that person

based on that conduct.

Other provisions of the Costa Mesa Municipal Code give

subsection (b) independent effect in circumstances where

subsection (a) might not operate (e.g., a person engages in

conduct that subsection (b) prohibits, but the presiding officer

does not exercise his power under subsection (a)). For

example, § 2-66 authorizes the sergeant-at-arms (who, at the

January 3 meeting, was Chief Hensley) to “arrest any person

violating the provisions” of Chapter III of the Code. Costa

Mesa, Cal., Mun. Code § 2-66. Additionally, § 1-34(a)

authorizes civil fines to be imposed for “any violation of the

provisions of [the] Code.” Costa Mesa, Cal., Mun. Code § 1-

34(a). These sections give § 2-61(b) independent legal

ACOSTA V. CITY OF COSTA MESA 19

significance, because engaging in the enumerated “unlawful”

behaviors would subject the violator to arrest, a civil fine, or

both.7 Nothing in the language of § 2-61 indicates that

subsection (a) limits the circumstances in which subsection

(b) triggers these sanctions.

Moreover, § 2-60 clarifies that the drafters of the Code

use the formulation “it shall be unlawful” to have

independent legal significance. The text of that section is as

follows:

Propriety of conduct of council members.

(a) Members of the council shall preserve

order and decorum during a meeting.

(b) It shall be unlawful for any member of the

council to violate any of the following

rules:

(1) 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.

(2) Members of the council shall obey and

carry out the lawful orders or

directives of the presiding officer.

7

This feature of the ordinance further distinguishes it from the ordinance

at issue in City of Norwalk, which authorized police officers to “remove”

someone from a city council meeting only upon an “order” from the

presiding officer. 900 F.2d at 1424.

20 ACOSTA V. CITY OF COSTA MESA

Costa Mesa, Cal., Mun. Code § 2-60. Like subsection (b) of

§ 2-61, subsection (b) of § 2-60 prohibits specific types of

conduct by declaring them to be “unlawful.” However, § 2-

60 does not contain a provision that authorizes a city official

to deal with a person engaged in the prohibited conduct, like

subsection (a) in § 2-61. Presumably, enforcement power

must be provided by some other part of the Code (such as

§ 2-66 or § 1-34(a)) if these prohibitions are to have any

coercive effect. Therefore, the drafters of the Code employ

the formulation “it shall be unlawful” to trigger the sanctions

available for “violations” of the code whenever a person

engaged in the “unlawful” conduct.

Thus, it would be reasonable to assume that the drafters

intended § 2-61(b) to have the same effect as § 2-60(b) when

they used the same “it shall be unlawful” formulation there.

Namely, a violation of subsection (b) will trigger potential

sanctions under § 2-66 and § 1-34 in addition to those

sanctions available under § 2-61(a). Therefore, subsection (b)

has legal significance independent of subsection (a). There

is no textual basis for reading subsection (b) together with

subsection (a) in such applications. As such, a person may be

fined or arrested for violating subsection (b)(1), regardless of

whether his “personal, impertinent, profane, or slanderous

remarks” are actually “disruptive.” Although we must adopt

a constitutional construction of § 2-61 if such a reading is

fairly possible, the City’s first two suggested constructions do

not meet that standard.

2

Even if subsection (a) provided a blanket limitation like

the City suggests, that would not be enough to validate the

statute. The items in the series of narrowing qualifiers in

ACOSTA V. CITY OF COSTA MESA 21

subsection (a) (“disorderly, insolent, or disruptive behavior”)

are different from the series of narrowing qualifiers in White,

900 F.2d at 1426 (“disrupts, disturbs, or otherwise impedes”).

All three items in White’s qualifying list refer to actions

creating some type of actual disruption. See 900 F.2d at

1424. Thus, these qualifiers satisfy Norse’s requirement that

rules of decorum should “only permit a presiding officer to

eject an attendee for actually disturbing or impeding a

meeting.” 629 F.3d at 976 (emphasis added).

Here, subsection (a) imposes no such limitation. Only the

words “disorderly” and “disruptive” are qualifiers that refer

to actual disruption of the city proceedings. The third

qualifier merely prohibits “insolent” behavior. The Costa

Mesa Municipal Code does not define the term “insolent.”

“When terms are not defined within a statute, they are

accorded their plain and ordinary meaning, which can be

deduced through reference sources such as general usage

dictionaries.” UMG Recordings, Inc. v. Shelter Capital

Partners LLC, 667 F.3d 1022, 1041 (9th Cir. 2011).

Webster’s Third defines “insolent” as “haughty and

contemptuous or brutal in behavior or language” or “lacking

usual or proper respect for rank or position.” Webster’s Third

New International Dictionary 1170 (emphasis added). This

type of expressive activity could, and often likely would, fall

well below the level of behavior that actually disturbs or

impedes a City Council proceeding.

Furthermore, we cannot read the words “disruptive” or

“disorderly,” which surround the term “insolent,” as a

modification of that term. California courts follow the

common rule of statutory construction that gives disjunctive

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

re Jesusa V., 85 P.3d 2, 24 (Cal. 2004) (“The ordinary and

22 ACOSTA V. CITY OF COSTA MESA

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

disjunctive meaning: In its ordinary sense, the function of the

word ‘or’ is to mark an alternative such as either this or that.”

(internal citation and quotation marks omitted)); see also In

re C.H., 264 P.3d 357 (Cal. 2011) (same). Thus, because

“insolent” is separated from “disorderly” and “disruptive” by

the word “or,” it must be interpreted to mean something

distinct.

Therefore, even if subsection (a) does limit subsection (b),

it does not limit it in a way that alleviates any constitutional

infirmity in subsection (b)(1). Any activity discussed under

subsection (b) that is also merely “insolent” under subsection

(a) is prohibited under the plain terms of the City’s ordinance.

For instance, a “remark[]” that is “personal,” “impertinent,”

“profane,” or “insolent” under subsection (b)(1), could be

“insolent . . behavior” under subsection (a), justifying

removal of the speaker. Accordingly, a comment amounting

to nothing more than bold criticism of City Council members

would fall in this category, whereas complimentary

comments would be allowed.8 Nothing guarantees that such

a comment would rise to the level of actual disruption. Thus,

the ordinance allows the City to prohibit non-disruptive

speech that is subjectively “impertinent, “insolent,” or

essentially offensive, even when subsection (a) is read as

limiting subsection (b)(1).

8

Furthermore, because subsection (a) authorizes the presiding officer at

a meeting to “bar from further audience before the council, or have

removed from the council chambers, any person who commits . . . insolent

. . . behavior,” subsection (a) itself is constitutionally infirm. The

unqualified term “insolent” in subsection (a) opens the door to

discrimination based on viewpoint, just like the term “insolent” in

subsection (b)(1).

ACOSTA V. CITY OF COSTA MESA 23

“If there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit the

expression of an idea simply because society finds the idea

itself offensive or disagreeable.” Texas v. Johnson, 491 U.S.

397, 414 (1989) (collecting cases); see also R.A.V. v. St. Paul,

505 U.S. 377, 392 (1992) (“[Government] has no [authority]

to license one side of a debate to fight freestyle, while

requiring the other to follow the Marquis of Queensbury

rules.”). Neither of the first two alternative constructions

proposed by the City will save the ordinance, because they

would permit City officials to prohibit speech on precisely

those grounds.

3

We also reject the City’s third proposed construction,

because it too depends on reading the statute in a way that the

text does not permit. The City argues that subsection (b)(6)

can be read as a limit on the entire statute. However, by its

terms, subsection (b)(6) is only one of many examples under

subsection (a) of how someone who is addressing the City

council might act in a “disorderly, insolent, or disruptive”

manner. Nothing textually about subsection (b)(6) limits

anything in the rest of § 2-61. Additionally, it is difficult to

square the City’s argument that subsection (b)(6) limits all of

§ 2-61, with its argument that § 2-61(a) does the same thing.

4

We conclude that § 2-61 is overbroad, because it

unnecessarily sweeps a substantial amount of non-disruptive,

protected speech within its prohibiting language. See Vlasak

v. Super. Ct. of Cal. ex rel. Cnty. of L.A., 329 F.3d 683, 689

(9th Cir. 2003). In White, the court explained that, while a

24 ACOSTA V. CITY OF COSTA MESA

speaker may be stopped “if his speech becomes irrelevant or

repetitious,” even in a limited public forum “a speaker may

not be stopped from speaking because the moderator

disagrees with the viewpoint he is expressing.” 900 F.2d at

1425; see also Chaker v. Crogan, 428 F.3d 1215, 1226–27

(9th Cir. 2005) (statute that prohibits false statements

complaining about the actions of a police officer, while

permitting false statements in support of a police officer, is a

viewpoint discriminatory violation of the First Amendment).

The City has not offered a fairly possible limiting

construction that would prevent city officials from enforcing

§ 2-61 against such speech (and we could not come up with

one). In fact, other City ordinances demonstrate that § 2-61

could have been written more narrowly. See Costa Mesa,

Cal., Mun. Code § 2-64 (“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, but not limited to,

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)); see also id.

§ 2-60 (“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.” (emphasis added)). Therefore, § 2-61 is

unconstitutional as written.

We note that this statute appears to be like the one that the

Supreme Court invalidated in Hill, 482 U.S. at 455, 461. In

Hill, the Court held that a city ordinance that made it

unlawful for a person “to assault, strike or in any manner

oppose, molest, abuse or interrupt any policeman in the

ACOSTA V. CITY OF COSTA MESA 25

execution of his duty” was unconstitutionally overbroad. Id.

The Court determined that the “ordinance criminalizes a

substantial amount of constitutionally protected speech, and

accords the police unconstitutional discretion in

enforcement.” Id. at 466–67 (emphasis added). “Far from

providing the breathing space that First Amendment freedoms

need to survive,” the Court concluded that “the ordinance is

susceptible of regular applications to protected expression,”

making it overbroad. Id. (internal citation and quotation

marks omitted). We reach the same conclusion here with

respect to § 2-61(b)(1).

B

Although § 2-61 is unconstitutional as written, we can

avoid invalidating the entire section if we can sever the

unconstitutional elements from the ordinance. To do so, we

must analyze both (1) whether we can sever the term

“insolent” from subsection (a), and (2) whether we can sever

the terms “personal, impertinent, profane, insolent” from

subsection (b)(1).9 The City of Costa Mesa has declared that

an unconstitutional “phrase, clause, sentence, paragraph [or]

section” of the Code should be severed in order to uphold the

constitutional parts of the Code. See Costa Mesa, Cal., Mun.

9

It is unnecessary to determine whether all of subsection (b)(1) is

invalid, because its prohibition on slander, which is unprotected by the

First Amendment, see Ashcroft v. Free Speech Coal., 535 U.S. 234,

245–46 (2002), does not raise any constitutional concerns. Additionally,

though subsection (b)(6) also contains the term “insolent,” it does not

prohibit such speech unless it “substantially delay[s], interrupt[s], or

disturb[s] the proceedings of the council.” Costa Mesa, Cal., Mun. Code

§ 2-61(b)(6). Arguably, this satisfies Norse’s actual disturbance

requirement and—because Acosta does not address it—we will not

analyze it further.

26 ACOSTA V. CITY OF COSTA MESA

Code § 1-32. Despite this authorization, the ordinance is only

constitutional if the text to be severed is volitionally,

grammatically, and functionally severable. 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); City of Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750, 772 (1988)

(“Severability of a local ordinance is a question of state law

. . . .”). Here, we begin with volitional severability, the “most

important” factor in the severability analysis.10 See Katz v.

Children’s Hosp. of Orange Cnty., 28 F.3d 1520, 1531 (9th

Cir. 1994). We conclude that § 2-61 cannot pass the test for

volitional severability, which is fatal to the severability

analysis. McMahan, 26 Cal. Rptr. 3d at 513 (“All three

criteria must be satisfied.”).

10

At oral argument, the City made an offhand remark that it favored

severance over complete invalidation. It neither briefed this argument, nor

raised it below. Regardless, it does not effect our view of volitional

severability. California courts look to what the intentions were of the

enacting body at the time of enactment to determine whether volitional

severability is met. See Gerken v. Fair Political Practices Comm’n,

863 P.2d 694, 699 (Cal. 1993). They do not look to the post hoc litigating

position taken by the government with respect to what should be done to

the statute. In fact, it is likely in most cases where a municipal enactment

is invalidated that the enacting municipality would prefer severance to

complete invalidation. See, e.g., Long Beach Lesbian & Gay Pride, Inc.

v. City of Long Beach, 17 Cal. Rptr. 2d 861, 868 (Ct. App. 1993) (stating

municipal defendant’s argument in favor of severance of unconstitutional

part of statute rather than complete invalidation). The fact that the City in

this case took just such a position is unremarkable and is not relevant to

determining what the City intended when it enacted this provision.

ACOSTA V. CITY OF COSTA MESA 27

1

Text passes the test for volitional severability if “it can be

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

sufficiently focused upon the parts to be [validated] so that it

would have separately considered and adopted them in the

absence of the invalid portions.” Gerken v. Fair Political

Practices Comm’n, 863 P.2d 694, 699 (Cal. 1993) (alterations

omitted). In this case, as in McMahan, the “text of the

initiative underscore[s] its primary objective.” 26 Cal. Rptr.

3d at 514. Looking to the text of § 2-61, it is not at all clear

that the enacting body’s “attention was sufficiently focused”

on the purpose of only prohibiting disruptive conduct such

that this ordinance would have still been passed in its

constitutional form, e.g., if it only prohibited disruptive

conduct. See Gerken, 863 P.2d at 699. Subsection (a)

prohibits “insolent” behavior (which could include speech),

and subsection (b)(1) prohibits “personal, impertinent,

profane, insolent . . . remarks,” even if the speech does not

cause a disruption. However, these terms are interwoven

with other adjectives that describe categories of speech,

which it is constitutional for the City to prohibit. Assuming

that the City’s purpose in enacting § 2-61 was to regulate

both disruptive and non-disruptive speech, we cannot say that

its attention was sufficiently focused on only employing § 2-

61 to prohibit disruptive speech.

The “intended function of [the] particular statutory

scheme” as a whole supports our conclusion that § 2-61 fails

the volitional severability prong. Barlow v. Davis, 85 Cal.

Rptr. 2d 752, 758 (Ct. App. 1999); Briseno v. City of Santa

Ana, 8 Cal. Rptr. 2d 486, 490 (Ct. App. 1992) (analyzing the

“overall statutory scheme” to determine legislative intent).

Section 2-61 clearly prohibits expressive speech by

28 ACOSTA V. CITY OF COSTA MESA

employing the term “insolent” without qualification, whereas

other sections of the City’s ordinances only prohibit speech

that “substantially delays, interrupts or disturbs” a meeting.

See, e.g., Costa Mesa, Cal., Mun. Code § 2-60 (“It shall be

unlawful for any member of the council to . . . by disorderly,

insolent or disturbing action, speech, or otherwise,

substantially delay, interrupt or disturb the proceedings of the

council”); id. § 2-64 (“It shall be unlawful for any person in

the audience at a council meeting to . . . [e]ngage in

disorderly, disruptive, disturbing, delaying or boisterous

conduct . . . which conduct substantially interrupts, delays, or

disturbs the peace and good order of the proceedings of the

council.”). 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). 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 § 2-60 and § 2-64 demonstrates that the

City knew how to enact an ordinance aimed at preventing

actual disturbances of council meetings. The City’s choice to

go further in § 2-61 by prohibiting “insolent” speech and

“personal, impertinent, profane . . . remarks” demonstrates a

meaningful difference that we cannot ignore, indicating that

the City intended these prohibitions to be a functional aspect

of § 2-61.

Metromedia, Inc. v. City of San Diego, 649 P.2d 902 (Cal.

1982) supports this analysis. There, the California Supreme

Court explained that “we know of no precedent for holding

that a clause of a statute, which as enacted is unconstitutional,

ACOSTA V. CITY OF COSTA MESA 29

may be changed in meaning in order to give it some

operation, when admittedly it cannot operate as the

Legislature intended.” Metromedia, 649 P.2d at 908 n.10

(emphasis added) (quoting People v. Perry, 21 P. 423 (Cal.

1889)). On that basis, 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 909.11 Here, by severing the unconstitutional

terms from § 2-61, we would similarly leave an ordinance

that no longer prohibits the speech the City intended it to

prohibit.

Based on the foregoing, we are not “confident” that the

City would have enacted § 2-61 without the parts we have

determined to be unconstitutional. Cf. McMahan, 26 Cal.

Rptr. 3d at 516 (finding provisions of law volitionally

severable when court “confident that the provisions [to be

retained after severance] would have received the

endorsement of the vast majority of voters, even [without the

unconstitutional part]”). Therefore, the volitional severability

prong is not satisfied. As a result, neither the term “insolent”

in subsection (a), nor the terms “personal, impertinent,

profane, insolent” in subsection (b)(1) can be severed from

§ 2-61. McMahan, 26 Cal. Rptr. 3d at 513 (“All three criteria

must be satisfied.”). Because these terms cannot be severed

and § 2-61 is not reasonably susceptible to a narrowing

11

In Katz v. Children’s Hospital of Orange Cnty., 28 F.3d 1520, 1531

(9th Cir. 1994), we were 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. We have

no such precedent here.

30 ACOSTA V. CITY OF COSTA MESA

construction, we must invalidate the entire section on this

basis alone. We nonetheless analyze the remaining two

prongs, grammatical and functional severability.

2

Text is grammatically (or “mechanically”) severable only

when it constitutes a “physically separate section[] of the

proposition.” Santa Barbara Sch. Dist. v. Superior Court,

530 P.2d 605, 618 (Cal. 1975). Thus, when California courts

have concluded that text was grammatically severable, the

text was severed from language that was in an entirely

different sentence or section of the statute, making it

grammatically “complete and distinct.” People’s Advocate,

Inc. v. Superior Court, 226 Cal. Rptr. 640, 648–49 (Ct. App.

1986); see also Gerken, 863 P.2d at 698 (“Petitioners concede

the various remaining parts of Proposition 73 meet the”

grammatically separable requirement for the severability test,

because the severed portion was an entirely separate

provision of the statute); Calfarm 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 wording of any other provision”

(emphasis added)); McMahan, 26 Cal. Rptr. 3d at 513

(“appellants concede[d] the invalid funding mandate [was]

grammatically severable” because it was a completely

separate portion of the statute); Barlow, 85 Cal. Rptr. 2d at

757 (the invalid portion could be severed because it

constituted an “entirely separate statute grammatically and

mechanically from the invalid substantive provisions”);

Briseno,8 Cal. Rptr. 2d at 490 (the unconstitutional word did

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

Sch. Dist., 530 P.2d at 617–18 (the text severed was a

separate and distinct statutory provision).

ACOSTA V. CITY OF COSTA MESA 31

First we address whether the word “insolent” is

grammatically severable from subsection (a) of § 2-61. No

California cases hold that one word and the two commas

surrounding it are grammatically severable from statutory

text. By contrast, at least two California cases dealing with

a similar issue refused to sever one unconstitutional word

from a sentence. See Cnty. of Sonoma, 93 Cal. Rptr. 3d at

61–62 (refusing to sever the word “unanimous” from the

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

City of Long Beach, 17 Cal. Rptr. 2d 861, 867–68 (Ct. App.

1993) (refusing to 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 867–69. Further, to so alter subsection (a)

would contravene 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 distinct sections can be “separated

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

word[],” Barlow, 85 Cal. Rptr. 2d at 757, grammatical

severability does not permit a single word to be excised from

the middle of a clause or phrase.

Next we analyze whether a grouping of individual words,

“personal, impertinent, profane, insolent” is severable from

the surrounding text in subsection (b). For the same reasons

just discussed with respect to severing the term “insolent”

from subsection (a), we conclude that these words are not

grammatically severable from subsection (b). Although this

grouping contains more than one word, the same concerns

with severing a single word from a sentence apply to severing

32 ACOSTA V. CITY OF COSTA MESA

a group of individual words from a sentence. Unlike a clause

or phrase, the grouping of individual words does not form a

complete grammatical unit expressing one legislative thought.

Were we to excise single words (or groups of individual

words), we would be “rewrit[ing] [the ordinance] in order to

save it.” United States v. Buckland, 289 F.3d 558, 564 (9th

Cir. 2002).

The terms of Costa Mesa’s severability clause, while not

determinative, support our conclusion that the individual

words at issue are not grammatically severable from their

surrounding text. 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.”

Barlow, 85 Cal. Rptr. 2d. at 757 (internal quotation marks

omitted). Here, the City’s severability clause only states that

“sections, paragraphs, clauses and phrases of this Code are

severable,” rather than individual words. Costa Mesa, Cal.,

Mun. Code § 1-32. Therefore, the severability clause

indicates that the City did not intend something less than a

phrase to be grammatically severable.

3

Finally, the unconstitutional words must also be

functionally severable if we are to only excise the invalid

terms while upholding the remainder of the ordinance. Text

is functionally severable if it is not necessary to the

ordinance’s operation and purpose. City of Long Beach,

17 Cal. Rptr. 2d at 868–69. Neither the term “insolent” in

subsection (a) nor the terms “personal, impertinent, profane,

insolent” in subsection (b)(1) can be said to be unnecessary

to the operation and purpose of § 2-61 as enacted by the City

ACOSTA V. CITY OF COSTA MESA 33

of Costa Mesa. Drawing on the foregoing plain text analysis,

one of the purposes of the ordinance is to prohibit certain

classes of expressive speech by persons addressing the City

Council, even if it does not disturb or disrupt the conduct of

the meeting. Excising these terms from § 2-61 removes non-

disruptive, non-disturbing speech from the scope of the

ordinance’s operation.

The testimony of the Chief of Police in this case

demonstrates that the term “insolent” was not unnecessary to

the operation of § 2-61. The Chief testified at trial that city

officials relied on the word “insolent” as a key part of

effectuating § 2-61’s purpose of prohibiting protected speech.

When asked whether § 2-61 “allowed [the police] to arrest the

persons insolent,” he answered, “Yes.” The Chief also

answered affirmatively when asked whether § 2-61 “was

enforced in Costa Mesa” such that it “would be [a] violation[]

of the municipal code” to make “insulting remarks.”

The Chief of Police’s testimony here parallels that of a

city official in City of Long Beach. In that case, the official

charged with enforcing the ordinance testified that the

ordinance could be enforced in an unconstitutional way. City

of Long Beach, 17 Cal. Rptr. 2d at 868. The court then held

that, when “[f]aced with . . . ambivalence by the official

charged with enforcing the section, [courts] cannot depart

from its plain language.” Id. (emphasis added). Likewise

here, the Chief’s testimony that § 2-61 is enforced

unconstitutionally affirms our conclusion that the

unconstitutional text is not functionally severable from § 2-

61.

34 ACOSTA V. CITY OF COSTA MESA

4

If a statute does not meet any one criteria (grammatical,

functional, or volitional severability), then a court may not

sever text from a statute. McMahan, 26 Cal. Rptr. 3d at 513.

Section 2-61 satisfies none of them, so it must be invalidated

as a whole. Even though invalidation of the entire provision

for overbreadth is a harsh remedy, it is necessary when we

cannot reconcile full protection for First Amendment liberties

with the discernable intent of the enacting body. “[G]radually

cutting away the unconstitutional aspects of a statute by

invalidating its improper applications case by case . . . does

not respond sufficiently to the peculiarly vulnerable character

of activities protected by the first amendment.” People v.

Rodriguez, 77 Cal. Rptr. 2d 676, 683 (Ct. App. 1998); see

also In re Berry, 436 P.2d 273, 286 (Cal. 1968) (finding “the

doctrine of severability. . . 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).

For an “overbroad law hangs over people’s heads like a

Sword of Damocles.” Rodriguez, 77 Cal. Rptr. 2d at 683

(internal quotation marks and alterations omitted). By

invalidating § 2-61 in its entirety, we eliminate the Dionysian

threat that the ordinance presents to those who are addressing

the City of Costa Mesa City Council.

III

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

improperly granted summary judgment on his as-applied

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

entity immunity to the extent that he sought damages.

ACOSTA V. CITY OF COSTA MESA 35

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

challenges. Facial and as-applied challenges can be viewed

as two separate inquiries. See Bd. of Trs. of State Univ. of

New York v. Fox, 492 U.S. 469, 482–86 (1989); Taxpayers

for Vincent, 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 City 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 undisturbed 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 constitutionally privileged. See

Bigelow v. Virginia, 421 U.S. 809, 815–16 (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.

36 ACOSTA V. CITY OF COSTA MESA

B

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

summary judgment. Davis v. City 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

substantive 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-

applied state constitutional claim on grounds of public entity

immunity, but Acosta does not challenge the grant of

discretionary 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 person.

(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 statute, including this part, and is

subject to any defenses that would be

available to the public entity if it were a

private person.

ACOSTA V. CITY OF COSTA MESA 37

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.

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

constitutionally 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 discretionary act immunity.12 Instead he claims

that the district court extended California case law too far in

granting the City public entity immunity.

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

. . . .”).

38 ACOSTA V. CITY OF COSTA MESA

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

qualifies 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.

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

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.

ACOSTA V. CITY OF COSTA MESA 39

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 exercise of authority. See Grossman v.

City 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 entitled 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 1202–03. 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 unconstitutional as to require a reasonable officer

not to enforce it. Id.

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

40 ACOSTA V. CITY OF COSTA MESA

the statute constitutional, the officers here reasonably

believed § 2-61 was constitutional. During oral argument,

strong arguments 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 constitutional 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

“Qualified immunity shields government officials from

civil damages liability unless the official violated a statutory

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 entitled

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 officer’s

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

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

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

“clearly established, the contours of the right must be

sufficiently 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 statutory or constitutional question beyond

debate.” Ashcroft v. 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 V. CITY OF COSTA MESA 41

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.

Resolution of both contentions turns on whether probable

cause existed to seize Acosta.

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

Amendment 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 probable cause could give rise to a First

Amendment violation.”). Furthermore, at the time of the

Council meeting, our precedent had previously upheld

restrictions on speech at city council meetings where the

speech was actually disruptive and this remains the law. See

City 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 entitled 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

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.

42 ACOSTA V. CITY OF COSTA MESA

only if the seizure is supported by probable cause. Dunaway

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

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

circumstances 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

admissible in court, it must be “legally sufficient and

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

Violations of §§ 2-61 and 2-64 are misdemeanors and a

person in violation of either ordinance can be arrested.

Section 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 audience to stand. Then the Mayor called for

a recess to end his disruptive behavior. Acosta remained at

the podium and continued to speak after the Mayor called the

recess.

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 officers on this

claim.14 Thus, even assuming that Acosta was arrested in

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. City of Upland, 527 F.3d

853, 865 (9th Cir. 2008). Here, given the Mayor’s repeated directives to

ACOSTA V. CITY OF COSTA MESA 43

retaliation for his remarks, because probable cause existed for

a violation of § 2-61, the officers are still entitled to qualified

immunity, not only for the removal of Acosta from the

chambers, but also for his subsequent arrest. Summary

judgment was properly granted in favor of the officers. The

remaining question we must answer is whether the officers

employed excessive force when enacting the seizure and

arrest.

C

When effecting an arrest, the Fourth Amendment requires

that officers use only such force as is “objectively

reasonable” under the circumstances. Jackson v. City of

Bremerton, 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, 396–97

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

reasonableness must be judged from the perspective of a

reasonable officer on the scene and allow for the fact that

officers often have to make split-second decisions under

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

651.

We find that there was no excessive force here as a matter

of law. The undisputed evidence shows that the officers used

only the force reasonably necessary to remove Acosta from

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.

44 ACOSTA V. CITY OF COSTA MESA

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 concedes

that he did not leave the podium immediately. Considering

the volatility of the situation and the presence of a large

crowd of hostile demonstrators, the amount of force the

officers 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 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

reasonableness 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

ACOSTA V. CITY OF COSTA MESA 45

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

statement “absolutely an act in conformity” and “highly

relevant” to the January 3, 2006, meeting.

A

We accord the district court “wide discretion in

determining the admissibility of evidence under the Federal

Rules.”15 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 prejudicial. See Harper v. City of Los

Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008).

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

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

determination that § 2-61 is facially overbroad does not require reversal

of the district court on any of these issues.

46 ACOSTA V. CITY OF COSTA MESA

error.16 Three videos depicting exactly how Acosta acted at

the January 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.

B

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

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

Williams, 297 F.3d 930, 934–35 (9th Cir. 2002); Duran,

221 F.3d at 1130–31. Any error in instructing the jury in a

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 the their

courtrooms when lawyers approach the podium who are known to the

court from prior appearances.

ACOSTA V. CITY OF COSTA MESA 47

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

instruction 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 harmless because, as we have already noted,

the district court provided 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 instructions refer to conduct, the

reference was to Acosta’s conduct at the January 3, 2006,

meeting.

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.

48 ACOSTA V. CITY OF COSTA MESA

He 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 verdict. 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 functions, not those of a

judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000) (internal quotation marks omitted).

Here, the jury returned a verdict in favor of the

defendants. The evidence presented at trial is easily

interpreted to support a reasonable jury’s determination that

the Mayor neutrally 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 properly instructed

jury could certainly have found that the meeting was actually

disrupted by Acosta addressing the audience 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.

ACOSTA V. CITY OF COSTA MESA 49

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.

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

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

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

activity’s expression — substantially impaired the conduct of

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

50 ACOSTA V. CITY OF COSTA MESA

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

ordinances in an unconstitutional manner. We affirm the

district court’s denial of equitable relief.

VIII

Section 2-61 is facially overbroad and therefore invalid,

and the offensive words cannot be excised from the

ordinance. 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

parties will bear their own costs on appeal.