Wednesday, November 4, 2009
Court Upholds Ejection From Public Meeting for Nazi Salute
By SHERRI M. OKAMOTO, Staff Writer
A man who was ejected from a city council meeting for giving a Nazi salute in the presiding officer’s direction did not suffer a violation of his First Amendment rights, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
As the salute could reasonably have interpreted as supporting or furthering the disruption of the meeting that had been occurring in the room, a majority of the divided panel agreed with District Judge Ronald M. Whyte of the Northern District of California that removing Robert Norse from the chambers was reasonable and that the mayor and council members were all entitled to qualified immunity.
The basis of Norse’s 42 U.S.C. § 1983 action was his eviction from two meetings of the Santa Cruz City Council. As the episodes were videotaped, the underlying facts were not disputed by the parties.
Norse was shown engaging in a parade about the council chambers, protesting the council’s action at a 2004 meeting.
At a 2002 meeting, Norse gave a Nazi salute in support of a disruptive member of the audience who had refused to leave the podium after the mayor ruled that the speaker’s time had expired, and that the portion of the meeting devoted to receiving oral communications from the public had ended.
The mayor had resumed council business by reading announcements and apparently had not noticed Norse’s gesture, but Councilman Tim Fitzmaurice called his attention to Norse’s behavior.
Norse was then ordered to leave the meeting.
In a 2004 unpublished disposition, a Ninth Circuit panel unanimously upheld the validity of the council rules that were being enforced at the time of Norse’s ejections, which authorized removal of “any person who interrupts and refuses to keep quiet…or otherwise disrupts the proceedings of the Council.”
The court, however, reversed the dismissal of the action, holding that there was no way of assessing the reasonableness of the mayor’s actions on the basis of the pleadings alone, particularly his action in ordering Norse’s 2002 ejection.
On remand, Whyte ruled that the mayor acted reasonably in ordering both of Norse’s ejections because Norse was supporting the conduct of persons in the meeting who were causing a disruption.
In her opinion for the appellate court, Judge Mary M. Schroeder agreed, explaining that Norse’s salute “had little to do with the message content of the speaker whose time had expired,” but rather was a protest to the mayor’s good faith efforts to enforce the rules of the meetings to maintain order.
Even if Norse’s free speech rights had been violated, Schroeder posited that this would not have been clear to a reasonable person in the mayor or council’s position, given the circumstances and threat of disorder presented.
As for Norse’s behavior at the 2004 meeting, the jurist said his conduct was “clearly disruptive” and there was no doubt that ordering Norse’s ejection in that instance was a reasonable application of the rules of the council.
Judge Diarmuid F. O’Scannlain joined Schroeder’s opinion, but Senior Judge A. Wallace Tashima only joined in the portion affirming the district court’s dismissal of Norse’s claim based on the 2004 ejection, insisting that Norse’s free speech rights were violated by his removal from the 2002 session.
Tashima argued that the record could support an inference that Norse was excluded from the 2002 meeting because the city officials disagreed with the views he expressed by giving his silent Nazi salute.
Because the district court’s procedure in granting judgment to the defendants on qualified immunity was akin to a summary judgment proceeding, Tashima opined that the appellate court was required to draw every reasonable inference in favor of Norse.
“It is uncontroverted that Norse’s Nazi salute lasted only a second or two and, in the course of rendering that salute, Norse uttered no word or other sound,” Tashima said, reasoning that since the council permitted silent, visual speech, such as the displaying of signs at its meetings, so long as such speech did not block the view of or otherwise interfere with other meeting attendees, that Norse’s gesture complied with the council’s rules.
He contended that the gesture itself could not have been disruptive since the mayor had not even noticed it and no audience members reacted to it, and therefore there was no justification to remove Norse from the hearing.
Tashima also said the majority’s ruling that the city officials were entitled to qualified immunity was “just plain wrong,” since clearly established law mandates that speech at a municipal meeting could not be suppressed unless it is actually disruptive.
The case is Norse v. City of Santa Cruz, 07-15814.
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