Monday, May 6, 2013
Panel Strikes Down Law on Disruption of Council Meetings
By KENNETH OFGANG, Staff Writer
A city ordinance regarding misconduct by members of the public at city council meetings is invalid on its face because it punishes conduct beyond actual disruptions, the Ninth U.S. Circuit Court of Appeals ruled Friday.
On rehearing Friday, the panel departed from its ruling last September that only a portion of Costa Mesa Municipal Code Sec. 2-61 was invalid, and that that part was severable. But it again affirmed a judgment in favor of city officials, saying they cannot be held liable for violating Benito Acosta’s civil rights because there is undisputed evidence that he was actually disrupting a meeting when he was arrested under the ordinance.
Acosta is an immigrants’ rights activist who also uses the name Coyotl Tezcatlipoca. At a 2006 council meeting, he addressed the council during the public comment period, protesting a recent agreement allowing city police to enforce immigration laws under the authority of Immigration and Customs Enforcement.
When he called on his supporters to stand up, then-Mayor Allan Mansoor—now a Republican assemblyman—said “No, we’re not going to do that.” Acosta, however, repeated three times “Do it,” and about 20 to 30 people stood and some applauded.
Mansoor then declared a recess, but Acosta remained at the podium, refusing police instructions to step away and claiming he was being deprived of his right to speak for three minutes under the public comment procedures. Police then arrested him for violation of Sec. 2-61, making it a misdemeanor for members of the public who speak at council meetings to engage in “disorderly, insolent, or disruptive behavior.”
He later testified that his face and legs were bruised during the altercation.
Acosta—who had called council members “racist pigs,” preceded by an expletive, at a previous meeting—pled 11 causes of action against the city, Mansoor, and the police chief and individual officers. Among other things, he challenged the ordinance facially and as applied, and asked for damages for an unreasonable search and seizure in connection with his arrest.
Acosta noted that a half hour before he spoke, Jim Gilchrist, a former congressional candidate and one of the founders of the Minuteman Project, often described as a vigilante group opposed to illegal immigration, had encouraged his supporters to rise at the end of his speech. The city responded that Gilchrist discouraged applause, and that the mayor allowed the action solely so that those standing could indicate their position without taking up time speaking.
Judge David O. Carter of the U.S. District Court for the Central District of California dismissed in part, holding that the ordinance was constitutional on its face. He subsequently granted partial summary judgment that the individual officers had qualified immunity in connection with Acosta’s arrest and removal from the meeting room.
The remaining claims were submitted to a jury, which found in favor of the defendants.
The Ninth Circuit, in its original ruling, found the ordinance partially invalid on its face, but otherwise affirmed. The panel—Judges Richard C. Tallman and N. Randy Smith and visiting District Judge Dee V. Benson of the District of Utah—said the term “insolent” was too vague to place a speaker on notice of what conduct was prohibited.
But the judges upheld the remainder of the ordinance and said that Acosta’s arrest was lawful. They noted that his own evidence, including a videotape of the meeting, showed him at the podium, continuing to exhort his followers, after the council recessed and officers asked him to leave.
In February, however, the judges withdrew that opinion and granted rehearing, and Friday they found more fault with the ordinance than they had originally.
They said it unnecessarily swept a substantial amount of non-disruptive, protected speech within its prohibitions, and that the terms “personal, impertinent, profane, insolent” in describing the prohibited behavior were vague and overbroad.
“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,” the court said in a per curiam opinion. “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.”
The Orange County Register noted after the trial that the city had spent more than $522,000 defending itself, as well as some $40,000 in a failed attempt to prosecute Acosta.
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