Norse v. City of Santa Cruz ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT NORSE, 
Plaintiff-Appellant,
v.
CITY OF SANTA CRUZ; CHRISTOPHER
KROHN, individually and in his
official capacity as Mayor of the
City of Santa Cruz; TIM No. 07-15814
FITZMAURICE; KEITH A. SUGAR;
EMILY REILLY; ED PORTER; SCOTT  D.C. No.
CV-02-01479-RMW
KENNEDY; MARK PRIMACK,
individually and in their official OPINION
capacities as Members of the
Santa Cruz City Council; LORAN
BAKER, individually and in his
official capacity as Sergeant of the
Santa Cruz Police Department;
STEVEN CLARK,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
June 12, 2009—San Francisco, California
Filed November 3, 2009
Before: Mary M. Schroeder, Diarmuid F. O’Scannlain and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Schroeder;
Partial Concurrence and Partial Dissent by Judge Tashima
14795
NORSE v. CITY OF SANTA CRUZ 14797
COUNSEL
David Beauvais, Oakland, California, for the plaintiff-
appellant.
14798 NORSE v. CITY OF SANTA CRUZ
Kathleen Wells, Santa Cruz, California, for the plaintiff-
appellant.
George J. Kovacevich, Santa Cruz, California, for the
defendants-appellees.
OPINION
SCHROEDER, Circuit Judge:
Plaintiff-Appellant Robert Norse was ejected from two
meetings of the Santa Cruz City Council, one in 2002 and one
in 2004. He filed this 42 U.S.C. § 1983 action against the City
and its Mayor and Council members alleging violation of his
First Amendment rights. In a 2004 unpublished, non-
precedential disposition, we unanimously upheld the validity
of the Council rules that were being enforced at the time of
the ejections. Norse v. City of Santa Cruz, No. 02-16446,
2004 WL 2757528 (9th Cir. Dec. 3, 2004) (“Norse I”), at *1.
The rules authorize removal of “any person who interrupts
and refuses to keep quiet . . . or otherwise disrupts the pro-
ceedings of the Council.” We observed that the rules are
materially similar to the regulations we upheld in White v.
City of Norwalk, 900 F.2d 1421 (9th Cir. 1990). Id.
A majority of us, however, reversed and remanded the dis-
trict court’s dismissal on the pleadings, holding that there was
no way of assessing the reasonableness of the Mayor’s
actions, particularly his action in ordering Norse’s 2002 ejec-
tion after Norse gave a Nazi salute to protest the Mayor’s
administration of the Council’s rules. Id. at *2.
On remand, the district court ruled that the Mayor acted
reasonably in ordering both of Norse’s ejections, because
Norse was supporting the conduct of persons in the meeting
who were causing a disruption. Our consideration of the case
NORSE v. CITY OF SANTA CRUZ 14799
has been delayed because of the difficulty in obtaining the
factual record underlying the district court’s rulings. This
record consists principally of the video tapes of the two epi-
sodes in question, so the underlying facts are not disputed.
There is no doubt that ordering Norse’s ejection in 2004 was
a reasonable application of the rules of the Council. The vid-
eotape shows that Norse was engaged in a parade about the
Council chambers protesting the Council’s action, and his
conduct was clearly disruptive.
With respect to the March 12, 2002 meeting, the behavior
that prompted Norse’s ejection was his giving a Nazi salute
in support of a disruptive member of the audience who had
refused to leave the podium after the presiding officer ruled
that the speaker’s time had expired, and that the portion of the
Council meeting devoted to receiving oral communications
from the public had ended. Two members of the audience in
the rear were creating a disruption. When the Mayor told the
speaker at the podium that her time had expired, the speaker
was visibly unhappy with the ruling, and Norse directed a
Nazi salute in the presiding officer’s direction. The salute was
obviously intended as a criticism or condemnation of the rul-
ing.
The Mayor had resumed Council business by reading
announcements and did not notice Norse’s Nazi salute until
another Council member called the Mayor’s attention to it.
The district court accurately described the proceedings, as
portrayed on the video, as follows:
Since he was reading, [the Mayor] did not notice
Norse’s gesture but within seconds council member
Fitzmaurice called his attention to the fact that Norse
had made a Nazi salute. . . . [The Mayor], . . . as the
presiding officer in charge of running the meeting,
was suddenly faced with a meeting that had been
interrupted by an offended council member. [The
Mayor] had just finished dealing with two disruptive
14800 NORSE v. CITY OF SANTA CRUZ
members of the public, at least one of whom Norse
was supporting with his salute. [The Mayor] also
knew that two Council members in the previous
months had expressed to Norse their abhorrence of
his Nazi gestures which reasonably suggests that
Norse intended his salute at the March 12, 2002
meeting to be disruptive. Further, Norse had begun
to verbally challenge Fitzmaurice’s comments.
Under those circumstances, the district court found that the
Mayor’s action in evicting Norse from the chambers was rea-
sonable, and that the Mayor and council members were all
entitled to qualified immunity.
[1] Our well-settled law gives great discretion to presiding
officers in enforcing reasonable rules for the orderly conduct
of meetings. In Kindt v. Santa Monica Rent Control Board, 67
F.3d 266, 269 (9th Cir. 1995), we upheld the Santa Monica
Rent Control Board’s action in ejecting a speaker several
times because his conduct disrupted the orderly processes of
meetings. We have long recognized that First Amendment
rights of expression are more limited during a meeting than in
a public forum, as, for example, a street corner. See White,
900 F.2d at 1425. Thus, we reaffirmed in Kindt what we said
in White, that a council “does not violate the first amendment
when it restricts public speakers to the subject at hand,” and
that a chair of a meeting may stop a speaker “if his speech
becomes irrelevant or repetitious.” Kindt, 67 F.3d at 270
(quoting White, 900 F.2d at 1425).
[2] Government officials performing discretionary func-
tions are entitled to qualified immunity where they reasonably
believe their actions to be lawful. Saucier v. Katz, 533 U.S.
194, 202 (2001). The interpretation and the enforcement of
rules during public meetings are highly discretionary func-
tions. See White, 900 F.2d at 1426 (“[T]he point at which
speech becomes unduly repetitious or largely irrelevant is not
NORSE v. CITY OF SANTA CRUZ 14801
mathematically determinable. The role of a moderator
involves a great deal of discretion.”).
[3] Our law is also clear, however, that discretion is not
unlimited, and that rules may not be enforced in order to sup-
press a particular viewpoint. See White, 900 F.2d at 1426. A
majority of us remanded this case years ago because, on the
basis of the pleadings alone, Norse’s ejection after the salute
may have been on account of a viewpoint that was contrary
to that of the Council. Now, on the basis of the undisputed
factual record of the videotaped proceedings, it is clear that
the salute was in protest of the chair’s enforcing the time limi-
tations and in support of the disruption that had just occurred
in the back of the meeting room. We agree with the district
court that the ejection was not on account of any permissible
expression of a point of view. Norse was protesting the good
faith efforts of the Chair to enforce the Council’s rules, which
we have already determined were valid, in order to maintain
order. See Norse I, 2004 WL 2757528, at *1.
[4] Accordingly, we agree with the district court that the
defendants did not violate Norse’s constitutional rights. In
addition, even if, in retrospect, we were to hold that Norse’s
First Amendment rights were violated, it would not have been
clear to a reasonable person in the Mayor and Council’s posi-
tion that the ejection was unlawful, given the difficult circum-
stances and threat of disorder that was presented by the
disruptions.
[5] We also agree with the district court that Norse’s refusal
to comply with the ejection order established probable cause
for his arrest. Even if the ejection itself violated Norse’s
rights, there would have been no basis for a reasonable police
officer to believe that Norse was defying anything other than
a lawful order. The Rules of the Body provided that the Ser-
geant at Arms “shall carry out all orders and instructions of
the Presiding Officer.” Our decision in Grossman v. City of
Portland, 33 F.3d 1200 (9th Cir. 1994), relied upon by the
14802 NORSE v. CITY OF SANTA CRUZ
district court, fully supports granting qualified immunity to
arresting officers who have probable cause to believe that
valid rules have been violated.
[6] In sum, the salute had little to do with the message con-
tent of the speaker whose time had expired. Rather, it was a
condemnation of the efforts of the Mayor to enforce the rules
of the meeting. The Council member who called the salute to
the Mayor’s attention could reasonably have interpreted it as
intended to support and to further the disruption that had just
been occurring in the room. Officers presiding over public
meetings are not required to condone conduct fostering dis-
ruption of a meeting. The district court correctly ruled that the
individual defendants were entitled to immunity when they
reasonably acted on the belief that disruptive behavior was
occurring and was fostered by the Nazi salute.
[7] Because the individual defendants were reacting reason-
ably to the specific situations that confronted them in both
2002 and 2004, and because the rules of the body they
enforced were constitutionally valid, there is no basis for
municipal liability. See White, 900 F.2d at 1424-25; Kindt, 67
F.3d at 271-72.
AFFIRMED.
TASHIMA, Circuit Judge, concurring in part and dissenting
in part:
In a proceeding akin to summary judgment, on the date set
for the commencement of a jury trial, the district court held
as a matter of law that defendants were entitled to qualified
immunity from liability. It held, first, that plaintiff ’s First
Amendment rights had not been violated, and, second, even
if they were, those rights were not clearly established. Two
incidents are at issue in this case, one in 2002 and the other
NORSE v. CITY OF SANTA CRUZ 14803
in 2004, both involving plaintiff Norse’s ejection from meet-
ings of the Santa Cruz City Council. I agree that Norse’s con-
duct at the 2004 meeting, as a matter of uncontroverted fact,
was disruptive. I therefore concur in the portion of the major-
ity opinion affirming the district court’s dismissal of that claim.1
I disagree, however, with the majority’s holding “that the
defendants did not violate Norse’s constitutional rights” in
ejecting him from the 2002 Council meeting. Maj. op. at
14801 (agreeing with the district court so holding).
While it is clear under our case law that local public offi-
cials conducting public meetings can restrict speech at such
meetings according to subject matter, duration, and method,
see Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 272
(9th Cir. 1995); White v. City of Norwalk, 900 F.2d 1421,
1425-26 (9th Cir. 1990), it is equally clear that public officials
may not restrict speech according to the viewpoint of the
speaker, see id. at 1425. In order to avoid any constitutional
problems, in a prior appeal, we construed the rules of the
Santa Cruz City Council “to proscribe only disruptive con-
duct.” See Norse v. City of Santa Cruz, 118 F. App’x 177, 178
(9th Cir. 2004) (“Norse I”).2 That limitation on what conduct
the Council rules proscribe is the law of the case. Yet, the
record supports the inference that the Mayor and members of
the City Council excluded Norse from the 2002 meeting
because they disagreed with the views he expressed by giving
his silent Nazi salute.3
1
I also agree with the majority that, whether or not there was probable
cause for Norse’s arrest at the 2002 meeting, the police officer (who was
acting as Sergeant at Arms for the Council meeting), acted reasonably in
carrying out the direct orders of the Presiding Officer (i.e., the Mayor) in
ejecting Norse from the meeting.
2
This narrowing construction was necessary because the Council rules
authorized, inter alia, the “removal . . . of any person who uses ‘language
tending to bring the council or any council member into contempt . . . .’ ”
Norse I, 118 F. App’x at 178 (quoting the Council rules).
3
The district court’s qualified immunity ruling was based primarily on
viewing a video, which we have also viewed. No witnesses were called or
14804 NORSE v. CITY OF SANTA CRUZ
It is uncontroverted that Norse’s Nazi salute lasted only a
second or two and, in the course of rendering that salute,
Norse uttered no word or other sound — he was silent. It is
also undisputed that the Council permits silent, visual speech,
such as the displaying of signs at its meetings, so long as such
speech does not block the view of or otherwise interfere with
other meeting attendees. Thus, the salute comported with the
Council’s rule permitting silent, non-verbal messages at the
Council meeting. That it was not, itself, disruptive, is evi-
denced by the fact that the Mayor was not even aware of it —
he continued with his reading of announcements — until
Councilmember Fitzmaurice called his attention to it. And, as
the video demonstrates, no member of the audience reacted to
Norse’s silent salute. Drawing all reasonable inferences in
Norse’s favor, as we must, I submit that there is no way to
conclude that, as a matter of law, Norse’s conduct in render-
ing a fleeting, silent Nazi salute was disruptive.
In fact, a close reading of the majority opinion shows that
it does not hold that Norse’s conduct was, itself, disruptive.
Thus, there was no justification for the Mayor to eject Norse
from the meeting for being disruptive. On the contrary, the
record clearly supports the inference that Norse was ejected
from the 2002 meeting because the Mayor and Council dis-
agreed with (and intensely and overtly disliked) his view-
point. The portion of the district court’s ruling quoted by the
majority admits as much. First, the district court noted that the
Mayor was “suddenly faced with a meeting that had been
interrupted by an offended council member.”4 Maj. op. at
14799 (emphasis added). It then notes the Council’s hostility
subject to cross-examination. The district court purported to make no find-
ings of fact, something it was not authorized to do because a jury trial had
been demanded and was about to commence. Thus, the evidence on which
the district court’s and the majority’s ruling were based is uncontroverted
(and untested). What remains controverted, however, are the reasonable
inferences that a fact finder can draw from this evidence.
4
Note that the “interruption,” or disruption, is caused, not by Norse, but
by the council member.
NORSE v. CITY OF SANTA CRUZ 14805
to Norse’s viewpoint. “[The Mayor] also knew that two Coun-
cil members in the previous months had expressed to Norse
their abhorrence of his Nazi gestures . . . .” Id. Further, as the
district court also noted, when Norse made his Nazi salute
gesture at past Council meetings, he was warned that Council
members found the gesture to be offensive and that he would
be removed from the meeting if he engaged in such conduct
again. Thus, there is ample evidence in the record to support
a finding that Norse was removed because of his viewpoint —
because Council members detested being characterized as act-
ing Nazi-like.
The majority attempts to elide the point by sidetracking the
issue. It says that Norse’s action was “in support of the dis-
ruption that had just occurred . . . .” Maj. op. at 14801. That
the Mayor was acting “in good faith” to “enforce the Council
rules . . . .” Id. That Norse’s Nazi salute “could reasonably
have [been] interpreted [ ] as intended to support and to fur-
ther the disruption that had just been occurring the room.” Id.
at 14802 But Norse’s speech cannot be suppressed because of
the actions of others. See Tinker v. Des Moines Indep. Cmty.
Sch. Dist., 393 U.S. 503, 508 (1969) (holding that black arm-
bands worn by high school students in protest of the Vietnam
war were not disruptive, and that they could not be suppressed
on account of the fact that the armbands might cause others
to react in disruptive ways). Nor is Norse’s intent relevant, so
long as his speech comports with the Council’s rules, as it did.
In sum, the district court erred in holding as a matter of law
that the Mayor and Council’s action in ejecting Norse from
the 2002 meeting for rendering a silent Nazi salute did not
violate his First Amendment rights. It could do so only by
drawing all inferences against Norse, as the majority does.
Alternatively, the majority further holds that “even if, in
retrospect, we were to hold that Norse’s First Amendment
rights were violated, it would not have been clear to a reason-
able person in the Mayor and Council’s position that the ejec-
tion was unlawful . . . .” Maj. op. at 14801. This holding also
14806 NORSE v. CITY OF SANTA CRUZ
is just plain wrong. Our case law had clearly established by
1990, twelve years before the 2002 Council meeting, that
speech at a municipal meeting could not be suppressed unless
it was actually disruptive. See White, 900 F.2d at 1424. That
this was the law of the circuit was confirmed five years later,
in 1995, in Kindt, 67 F.3d at 270. Just as importantly, our
First Amendment jurisprudence on the limited public fora of
municipal meetings is in accord with decades-old, clearly-
established Supreme Court case law that speech in such fora
cannot be “prohibited ‘ “merely because public officials dis-
approve the speaker’s view.” ’ ” U.S. Postal Serv. v. Council
of Greenburgh Civic Ass’ns, 453 U.S. 114, 132 (1981) (quot-
ing Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530,
536 (1980) (quoting Niemotko v. Maryland, 340 U.S. 268,
282 (1951) (Frankfurter, J., concurring in result))); see also
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 46 (1983) (noting that the State may regulate speech at a
limited public forum “as long as the regulation on speech is
reasonable and not an effort to suppress expression merely
because officials oppose the speaker’s view”). Thus, this First
Amendment principle that the Mayor and City Council vio-
lated (and the majority ignores) has been the law of the land
for over a half century.
As I noted earlier, the district court’s procedure in granting
judgment to defendants on qualified immunity was akin to a
summary judgment proceeding.5 That being the case, we are
required to draw every reasonable inference in favor of the
opposing party, here Norse. But the majority does exactly the
opposite. First, the majority “agree[s] with the district court
that the ejection was not on account of any permissible
expression of a point of view.” Maj. op. at 14801. But this
5
The district court never specified what procedure it was following,
only that it was holding a “hearing” to resolve the issue of qualified immu-
nity. Neither does the majority acknowledge the district court’s unusual
procedure, nor indicate what legal standard applied to that procedure, nor
what standard of review it is applying.
NORSE v. CITY OF SANTA CRUZ 14807
view rejects the reasonable inference that the Mayor was act-
ing to enforce the Council’s stated “abhorrence of [Norse’s]
Nazi gesture.” The majority also agrees with the district
court’s view “that Norse intended his salute . . . to be disrup-
tive.” Id. at 14800. This, too, is an inference drawn against
Norse. And again, the majority infers that “[t]he Council
member who called the salute to the Mayor’s attention could
reasonably have interpreted it as intended to support and to
further the disruption that had just been occurring [by others]
in the room.” Id. at 14802. But why, at this stage, should such
an inference be drawn against Norse? All these are issues of
controverted fact which should have been submitted to the
jury — the trier of fact.
From all this, the majority concludes that “it would not
have been clear to a reasonable person in the Mayor and
Council’s position that the ejection was unlawful, given the
difficult circumstances and threat of disorder that was pre-
sented by the disruptions.” Id. at 14801. I have viewed the
same video of the 2002 Council meeting on which the major-
ity bases its conclusion, and to conclude that the circum-
stances were “difficult” and that there was a “threat of
disorder,” as the majority does, is hyperbolic, to say the least.
Most reasonable persons would conclude, after viewing the
same video, that this meeting was no more “difficult” or “dis-
orderly” than any other small-town Council meeting. In any
event, this too is a question of fact. But, even if the majority’s
“findings” are taken at face value, the threat of disruption by
others does not excuse the denial of Norse’s clearly estab-
lished First Amendment rights. As the Supreme Court has
reminded us, “in our system, undifferentiated fear or appre-
hension of disturbance is not enough to overcome the right to
freedom of expression.” Tinker, 393 U.S. at 508.
If the reasonable inferences are drawn in favor of Norse, as
should have done in this summary-judgment-like proceeding,
Norse was deprived of his First Amendment right silently to
protest the Council’s action by his Nazi salute because the
14808 NORSE v. CITY OF SANTA CRUZ
Mayor and Council carried out their previously voiced threat
— that Norse would be removed from the meeting if he
engaged in rendering his Nazi salute again. What’s more, this
law has been clearly established for decades. There is nothing
ambiguous or “iffy” about this aspect of First Amendment
law. No reasonable local public official could believe that he
could lawfully remove a member of the public from a public
meeting because he found that person’s silent speech to be
abhorrent or personally offensive.
I respectfully dissent from that portion of the majority opin-
ion which grants the Mayor and Council members qualified
immunity from liability on Norse’s First Amendment claim
for being ejected from the 2002 Council meeting. Because the
law was clearly established and the evidence supports the
inference that the Mayor and Council members acted to sup-
press speech they found to be abhorrent and offensive, even
though it was not disruptive, it was error to grant qualified
immunity to defendants as a matter of law. I would reverse
the grant of qualified immunity as to the 2002 meeting and
remand this claim for trial.