Benito Acosta v. City of Costa Mesa , 718 F.3d 800 ( 2013 )

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.