Benito Acosta v. City of Costa Mesa

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENITO ACOSTA, 
Plaintiff-Appellant,
v.
CITY OF COSTA MESA; ALLAN
MANSOOR, Mayor of the City of
Costa Mesa, in his official and
individual capacities, No. 10-56854
Defendants-Appellees, D.C. No.
 8:06-cv-00233-
DOC-MLG
JOHN HENSLEY, Chief of Police,
Costa Mesa Police Department; OPINION
DAVID ANDERSEN; DAVID DEHUFF;
JOHN DOEZIE; BRYAN GLASS;
DANIEL GUTH; DAVID MAKIYAMA;
JEFF TOBIN; DEREK TRUSK, in their
official and individual capacities,
Defendants-Appellees.

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 September 5, 2012
10607
10608 ACOSTA v. CITY OF COSTA MESA
Before: Richard C. Tallman and N. Randy Smith,
Circuit Judges, and Dee V. Benson, District Judge.*
Opinion by Judge Tallman;
Dissent by Judge N.R. Smith
*The Honorable Dee V. Benson, United States District Judge for the
District of Utah, sitting by designation.
ACOSTA v. CITY OF COSTA MESA 10611
COUNSEL
Belinda E. Helzer, Esq., ACLU Foundation of Southern Cali-
fornia, Orange, California, for the plaintiff-appellant.
10612 ACOSTA v. CITY OF COSTA MESA
M. Lois Boback, Esq. (argued) and Daniel K. Spradlin, Esq.,
Woodruff, Spradlin & Smart, APC, Costa Mesa, California,
for the defendants-appellees.
OPINION
TALLMAN, Circuit Judge:
Costa Mesa Municipal Code § 2-61 makes it a misdemea-
nor 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 dismissal of
his First Amendment facial challenge to the ordinance. He
also appeals the district court’s grant of partial summary judg-
ment 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 evi-
dence, 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 con-
trary to the Mayor’s.
Because § 2-61 fails to limit proscribed activity to only
actual disturbances, we reverse the district court’s constitu-
tionality ruling and find the statute facially invalid. However,
the word “insolent” is easily removed from the ordinance
without detriment to the purpose of § 2-61 and it need not be
wholly invalidated since it was properly applied to Acosta’s
disruptive behavior. We affirm the remainder of the district
court’s determinations.
ACOSTA v. CITY OF COSTA MESA 10613
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 “Mayor”),
Chief of Police John Hensley, and several individual police offi-
cers.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 Muni. 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 mis-
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 Hens-
ley directed Acosta’s removal when he failed to cease his disruptive activ-
ities 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.” Coali-
tion of Labor & Agriculture v. Cty. 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 . . . .”
10614 ACOSTA v. CITY OF COSTA MESA
demeanor. Meetings are recorded by video cameras and the
relevant recordings are part of the record on appeal.
In December 2005 the Mayor proposed that the City enter
into an agreement with Immigration and Customs Enforce-
ment (“ICE”) to have its police officers designated immigra-
tion agents with the authority to enforce federal immigration
laws in the City. The proposal was placed on the City Coun-
cil’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 oppo-
sition to the proposal. When Acosta’s time came to speak, the
video recordings show that he was visibly emotional and agi-
tated.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.
After receiving local and national media attention, the City
Council again placed the ICE agreement on the agenda of the
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 intro-
duced 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. Appel-
lees 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 10615
next regular Council meeting on January 3, 2006. Prior to that
meeting, groups supporting and opposing the agreement dem-
onstrated outside City Hall. Council Chambers was filled to
overflow capacity and additional demonstrators remained out-
side. During the public comment portion of the meeting a
total of twenty-five speakers addressed the City Council, fif-
teen 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 audi-
ence 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 represen-
tative; 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
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 fac-
ing 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
4
Costa Mesa Municipal Code § 2-63 authorizes inquiry into speaker
representation: “In order to expedite matters and to avoid repetitious pre-
sentations, 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.”
10616 ACOSTA v. CITY OF COSTA MESA
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 offi-
cers 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 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, how-
ever, they encountered a large crowd and Acosta increased his
efforts to resist the officers. When the officers attempted to
ACOSTA v. CITY OF COSTA MESA 10617
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 mov-
ing 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 Amend-
ment 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 Cali-
fornia Constitution that sought damages. At the district court
and here, the core of Acosta’s argument is that § 2-61 uncon-
stitutionally 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 dis-
trict court dismissed without prejudice Acosta’s facial chal-
lenges 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 dis-
rupted 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 mone-
tary damages and granted the City public entity immunity for
10618 ACOSTA v. CITY OF COSTA MESA
Acosta’s as-applied challenges under the California Constitu-
tion 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 chal-
lenge 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.
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 his First and Fourth Amendment claims.
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
We turn first to Acosta’s facial challenge to Costa Mesa
Municipal Code § 2-61.5 We review de novo a dismissal for
5
Section 2-61 provides:
(a) The presiding officer at a meeting may in his or her discretion
bar from further audience before the council, or have removed
ACOSTA v. CITY OF COSTA MESA 10619
failure to state a claim. See Kennedy v. S. Cal. Edison Co.,
268 F.3d 763, 767 (9th Cir. 2001). We also review de novo
the legal question of whether a statutory provision is constitu-
tional. Planned Parenthood of S. Ariz. v. Lawall, 307 F.3d
783, 786 (9th Cir. 2002).
In First Amendment jurisprudence, a person asserting a
statute is overly broad need not demonstrate that his “own
conduct could not be regulated by a statute drawn with the
requisite narrow specificity.” Broadrick v. Oklahoma, 413
U.S. 601, 612 (1973). “Litigants, therefore, are permitted to
challenge a statute not because their own rights of free expres-
sion are violated, but because of a judicial prediction or
assumption that the statute’s very existence may cause others
not before the court to refrain from constitutionally protected
speech or expression.” Id.
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 coun-
cil 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 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.
10620 ACOSTA v. CITY OF COSTA MESA
[1] For a statute to be facially invalid on overbreadth
grounds, it must be substantially overbroad. Members of Cty.
Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 80001
(1984). There must be a “realistic danger that the statute itself
will significantly compromise recognized First Amendment
protections of parties not before the Court.” Id. at 801. A stat-
ute will not be held invalid simply because we can “conceive
of a single impermissible application.” Broadrick, 413 U.S. at
630.
In Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir.
2010) (en banc), we held that in a limited public forum such
as a city council meeting, a city’s rules of decorum will not
be facially overbroad “where they only permit a presiding
officer to eject an attendee for actually disturbing or impeding
a meeting.” A city, however, cannot define actual disturbance
in any way it chooses; the statute must not unnecessarily
restrict protected speech. Id.
A
“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.” United States v. Williams, 553 U.S. 285, 293 (2008).
Because § 2-61 is part of the Municipal Code of Costa Mesa,
we must apply California authority to interpret the statute.
Our interpretation of § 2-61 must determine whether (1) any
narrowing constructions are available to save § 2-61 without
rewriting the ordinance, and if not, (2) whether the remainder
of the ordinance can be severed from the constitutionally
invalid text. See In re Berry, 436 P.2d 273, 286 (1968); see
also Planned Parenthood of Id., Inc. v. Wasden, 376 F.3d
908, 925, 930, 935 (9th Cir. 2004).
At step one, the City argues that § 2-61 can be read nar-
rowly to prohibit only speech that actually disrupts or disturbs
the city council meeting. However, because of the inclusion
ACOSTA v. CITY OF COSTA MESA 10621
of the term “insolent” in § 2-61(a), this argument is unavail-
ing.
We confronted a similar issue in White v. City of Norwalk,
900 F.2d 1421 (9th Cir. 1990). In City of Norwalk, the plain-
tiffs brought a facial challenge to a city ordinance that pro-
scribed “personal, impertinent, slanderous or profane
remarks.” Id. at 1424.6 The City of Norwalk, however, offered
a narrow construction of the ordinance that only permitted
removal when someone who made a proscribed remark was
acting in a way that actually disturbed the meeting. We
adopted this construction, because language after the offend-
ing phrase indicated that the prohibited conduct must be con-
duct which “disrupts, disturbs or otherwise impedes the
orderly conduct of any Council meeting.” Id.
In adopting the City of Norwalk’s narrow construction, we
held that the city council meetings, once open to public partic-
ipation, are limited public forums. A council can regulate not
only the time, place, and manner of speech in a limited public
forum, but also the content of the speech with reasonable and
viewpoint neutral regulations. Id. at 1425; see also Kindt v.
Santa Monica Rent Control Bd., 67 F.3d 266, 27071 (9th Cir.
1995). Indeed, the very California statute that requires public
6
In pertinent part, Norwalk Municipal Code § 2-1.1 provided:
(b) Rules of Decorum. While any meeting of the City Council is
in session, the following rules of order and decorum shall be
observed: . . .
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 Coun-
cil, 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 presid-
ing officer or a majority of the Council, be barred from fur-
ther audience before the Council during that meeting.
10622 ACOSTA v. CITY OF COSTA MESA
meetings to include public comment portions restricts the con-
tent of those public comments. Cal. Gov’t Code § 54954.3
(permitting members of the public to address the legislative
body on matters “within the subject matter jurisdiction of the
legislative body”).
[2] Here, Acosta points to § 2-61(b)(1) as the offending
section of the ordinance. Section 2-61(b)(1) standing alone
prohibits any “personal, impertinent, profane, insolent, or
slanderous remarks.” And like the clause at issue in City of
Norwalk, that—without limitation—is an unconstitutional
restriction of speech. Unlike the City of Norwalk ordinance,
however, § 2-61 is not readily susceptible to a narrowing con-
struction because the requirement of an actual disruption is
not evident in the ordinance itself.
Though § 2-61(a) could be read to modify all of subsection
(b), subsection (a) itself is constitutionally infirm. Subsection
(a) significantly departs from the ordinance in City of Nor-
walk by including the modifier “insolent” to describe the type
of behavior that creates an actual disruption. In City of Nor-
walk, the text of the regulation prohibited speech that “dis-
rupts, disturbs, or otherwise impedes the orderly conduct of
the Council meeting.” 900 F.2d at 1426. Disrupt, disturb, and
impede all refer to actions that are actual disruptions.
[3] In contrast, the text of § 2-61 prohibiting “insolent”
behavior cannot be narrowed to include only an actual disrup-
tion. Insolent is defined as “proud, disdainful, haughty, arro-
gant, overbearing; offensively contemptuous of the rights or
feelings of others” or “contemptuous of rightful authority;
presumptuously or offensively contemptuous; impertinently
insulting.” Oxford English Dictionary Online, Oxford Univer-
sity Press, http://www.oed.com (quick search “insolent”) (last
visited July 18, 2012). This type of expressive activity could,
and often likely would, fall well below the level of behavior
that actually disturbs, disrupts, or impedes a city council
meeting. For example, in Norse, we considered a First
ACOSTA v. CITY OF COSTA MESA 10623
Amendment challenge that involved what could be character-
ized as insolent behavior. There, the plaintiff was ejected
from a city council meeting and arrested after he gave the
council a silent Nazi salute in protest of the mayor’s treatment
of another speaker. 629 F.3d at 969. This momentary gesture
caused no reaction, delay, or disturbance, and in fact the
mayor did not even notice the gesture until another council-
man told him of it. We held that “[a]ctual disruption means
actual disruption,” and a city cannot “define disruption so as
to include non-disruption to invoke the aid of Norwalk.” Id.
at 976.
Arguably, subsection (b) could narrow the definition of
insolent behavior. When read in conjunction with subsection
(b)(1), however, § 2-61 deems insolent, personal, profane,
impertinent, or slanderous remarks as grounds for removal. A
comment amounting to nothing more than bold criticism of
city council members would fall in this category, whereas
complimentary comments would be allowed. Indeed, a silent
thumbs down or other crude hand gesture may be used to
express contempt or impertinence, thus qualifying as insolent
behavior under § 2-61, but would not necessarily be disrup-
tive. Section 2-61, as it stands, sweeps in this very type of
protected expression.
Nor can § 2-61 be narrowed by reading “disorderly” or
“disruptive” to restrict “insolent.” The California courts fol-
low the rule of statutory construction that gives disjunctive
and distinct meaning to items separated by the word “or.” The
California Supreme Court has explained that “[t]he ordinary
and popular meaning of the word ‘or’ is well settled. It has a
disjunctive meaning . . . the function of the word ‘or’ is to
mark an alternative such as either this or that.” In re Jesusa
V., 85 P.3d 2, 24 (Cal. 2004) (internal quotation marks and
citations omitted). Because “insolent” is separated from “dis-
orderly” and “disruptive” by the word “or,” it must be inter-
preted to mean something distinct; on the face of the
10624 ACOSTA v. CITY OF COSTA MESA
ordinance, proscribed behavior is either insolent or disorderly
or disruptive.
The city’s argument that the statute is less suspect because
it is aimed only at behavior is also unavailing. A statute that
regulates speech cannot be saved by simply adding the word
conduct, behavior, or action. See Cohen v. California, 403
U.S. 15, 18 (1971). Indeed, in Texas v. Johnson, 491 U.S. 397
(1989), the Court rejected the government’s argument that the
statute prohibiting flag burning was aimed at conduct. The
Court explained that the government’s argument “cannot
depend here on the distinction between written or spoken
words and nonverbal conduct.” Id. at 416. Such a distinction
“is of no moment where the nonverbal conduct is expressive”
and “where the regulation of that conduct is related to expres-
sion . . . .” Id. Here, subsection (a) regulates both speech and
conduct for no other reason than the expressive nature of that
conduct. Consider the thumbs down which is given to express
general disapproval or the Nazi salute of Norse—because § 2-
61 is not limited to conduct that actually disrupts the meeting,
these instances of expressive, non-disruptive conduct are
swept into the reach of § 2-61, but an approving thumbs up
sign would not be “insolent,” and therefore permissible,
behavior. Thus, the City’s reliance on conduct does not suc-
cessfully narrow the statute.
The City’s last argument is also unavailing. At oral argu-
ment, the City argued that § 2-61(b)(6) could be read to limit
the entire statute. Section 2-61(b)(6) reads: “No person shall,
by disorderly, insolent, or disturbing action, speech, or other-
wise, substantially delay, interrupt, or disturb the proceedings
of the council.” But by the terms of the ordinance, subsection
(b)(6) is merely one of many, non-exclusive, examples of how
someone can act, under subsection (a), in a “disorderly, inso-
lent, or disruptive” manner. And, therefore, it cannot narrow
the breadth of subsection (a).
Finally, the fact that more narrowly tailored alternatives to
regulate disruptive conduct are available to the City is evident
ACOSTA v. CITY OF COSTA MESA 10625
from review of other Costa Mesa ordinances. Section 2-64
states:
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 . . . 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). Similarly, § 2-60 states: “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.” Costa Mesa Muni. Code § 2-
60 (emphasis added). Both §§ 2-60 and 2-64, like the ordi-
nance in City of Norwalk, only proscribe activity that actually
interrupts, delays, or disturbs the council and neither broadly
prohibits remarks or expressive conduct merely because they
are insolent.
[4] We hold that § 2-61 is unconstitutionally overbroad on
its face because it unnecessarily sweeps a substantial amount
of non-disruptive protected speech or expressive conduct
within its prohibiting language.
B
[5] We next must decide if, without the constitutionally
infirm word “insolent,” the remaining text is severable and
operative—a question of California law.7 Leavitt v. Jane L.,
7
Although neither party briefed the issue of severability, the question of
severability is an inherent part of the process of constitutional adjudica-
tion. See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 507 (1985)
(rejecting the argument that appellants waived the severability issue where
10626 ACOSTA v. CITY OF COSTA MESA
518 U.S. 137, 139 (1996) (per curiam). In California, and in
general, severing the offending provision is the more prudent
course. Gerken v. Fair Political Practices Comm’n, 863 P.2d
694, 698 (Cal. 1993), see also Briseno v. Cty. of Santa Ana,
8 Cal. Rptr. 2d 486, 490 (Ct. App. 1992) (“[I]nvalid provi-
sions of a statute should be severed whenever possible to pre-
serve the validity of the remainder of the statute.”).
The Costa Mesa Municipal Code contains a severance
clause at § 1-32:
It is hereby declared to be the intention of the city
council that the sections, paragraphs, clauses and
phrases of this Code are severable, and if any phrase,
clause, sentence, paragraph or section of this Code
shall be declared unconstitutional, invalid or unen-
forceable by the valid judgment or decree of a court
of competent jurisdiction, such unconstitutionality
shall not affect any of the remaining phrases,
clauses, sentences, paragraphs and sections of this
Code.
Like most severance clauses, this clause “calls for sustaining
the valid part of the enactment, especially when the invalid
part is mechanically severable.” McMahan v. Cty. & Cnty. of
San Francisco, 26 Cal. Rptr. 3d 509, 513 (Ct. App. 2005)
(internal quotation marks omitted). But a severance clause
and mechanical severability are not dispositive. The funda-
they did not argue it before the appellate court after finding a part of the
statute unconstitutional, deeming it “quite evident that the remainder of
the statute retains its effectiveness . . . . In these circumstances, the issue
of severability is no obstacle to partial invalidation, which is the course the
Court of Appeals should have pursued.”); see also Randall v. Sorrell, 548
U.S. 230, 262 (2006) (considering severability even where parties did not
argue it in their briefs); Denver Area Educ. Telecomms. Consortium, Inc.
v. FCC, 518 U.S. 727, 767 (1996) (same); New York v. United States, 505
U.S. 144, 186 (1992) (same).
ACOSTA v. CITY OF COSTA MESA 10627
mental question is—without the infirm text—whether “the
remainder is complete in itself and would have been adopted
by the legislative body had the latter foreseen the partial inva-
lidity of the statute or constitutes a completely operative
expression of the legislative intent and is not so connected
with the rest of statute as to be inseparable.” Id. (alterations
and internal quotation marks omitted).
Under California law, this consideration examines three
criteria— grammatical, functional, and volitional severability
—all of which must be satisfied. Id.
1
[6] “An enactment passes the grammatical test where the
language of the statute is mechanically severable, that is
where the valid and invalid parts can be separated by para-
graph, sentence, clause, phrase or even single words.” Barlow
v. Davis, 85 Cal. Rptr. 2d 752, 757 (Ct. App. 1999) (emphasis
added). Here, it is clear that the word insolent is grammati-
cally severable. It is simply one of three adjectives used to
describe the type of behavior that warrants removal from a
council meeting.8 We have already noted that “insolent” is
distinct from the words surrounding it as it is separated from
them by the word “or.” Thus, “the wording of [§ 2-61] is not
affected by removal” of “insolent.” Id. (emphasis in original);
see also 13 Cal. Jur. Constitutional Law § 81 (2012). Without
“insolent,” § 2-61 proscribes disorderly or disruptive behav-
ior, a constitutionally valid restriction.9 Cty. of Norwalk, 900
F.3d at 1425.
8
Indeed, according to the structure of the sentence, “insolent” must be
read to modify behavior. Thus, § 2-61 prohibits disorderly behavior, inso-
lent behavior, and disruptive behavior. It is the restriction of “insolent
behavior” that is unconstitutional.
9
Our colleague’s argument in partial dissent that the severance clause,
§ 1-32, does not allow for the severance of one word from § 2-61 places
undue weight on the fact that no California case has approved removal of
10628 ACOSTA v. CITY OF COSTA MESA
The dissent relies upon two California cases, Long Beach
Lesbian and Gay Pride, Inc. v. City of Long Beach, 17 Cal.
Rptr. 2d 861, 868 (Ct. App. 1993) and County of Sonoma, 93
Cal. Rptr. 3d at 62, to support its position that one word is not
grammatically severable from a statute under California law.
Both cases, however, are easily distinguished as removal of
the single words in those cases fundamentally changed the
meaning of the statutes. That is not the case here.
one word in the middle of a statute. First, the weight of California cases
focus on a common sense reading without the offensive term and rarely
focus so technically on the words of the severability clause. See, e.g.,
Briseno, 6 Cal. Rptr. at 490 (finding unconstitutional text severable from
sequential sections of the statutory scheme even where that word (family)
did not occur in the subsequent sections as “any overtones of ‘family’ can
be easily severed”). Courts have also found statutes severable where no
severance clause existed. See Denver Area Educ. Telcomms. Consortium,
518 U.S. at 767; Legislature v. Eu, 816 P.2d 1309, 1335 (Cal. 1991) (“But
in any event, it is clear that severance of particular provisions is permissi-
ble despite the absence of a formal severance clause.”) (citing People v.
Mirmirani, 636 P.2d 1130 (Cal. 1981)). Furthermore, California courts
often ask whether the remainder of the statute—once the offending text is
removed—is severable and legally operative. See, e.g., Gerken, 863 P.2d
at 699 (“Santa Barbara [530 P.2d 605] stands for the proposition that if
a part to be severed reflects a ‘substantial’ portion of the electorate’s pur-
pose, that part can and should be severed and given operative effect.”)
(emphasis added); McMahan, 26 Cal. Rptr. 3d at 512 (“[T]he sole issue
we must decide is whether the valid portion of the Care Not Cash law that
requires a change from assistance through cash to assistance through ser-
vices can be severed from the admittedly invalid funding mandate.”)
(emphasis added); Barlow, 85 Cal. Rptr. 2d at 757 (“We agree with appel-
lants that in addition to the severability clause, section 10115.5 is mechan-
ically and grammatically severable from the provisions of article 1.5
declared unconstitutional . . . .”) (emphasis added); but see Cnty. of
Sonoma v. Sup. Ct. of Sonoma Cnty., 93 Cal. Rptr. 3d 39, 58 (Ct. App.
2009) (concluding that where one offensive word was the subject of much
debate before enactment, that word “could not be severed from the
remainder of the legislation”). Our reading of the weight of the cases,
leads us to the conclusion that asking whether California courts allow the
removal of one, non-essential, word focuses on the wrong question.
Instead, our focus must be upon the remainder and whether any sections,
paragraphs, clauses or phrases are severable and operative.
ACOSTA v. CITY OF COSTA MESA 10629
First, County of Sonoma does little to support the dissent’s
position that one word is not grammatically severable under
California law as severability was rejected under the voli-
tional factor and not the grammatical factor. 93 Cal. Rptr. at
62. There, the court of appeal found California Code of Civil
Procedure § 1299.7(c) impermissibly allowed a minority of
the county board to set employee compensation by requiring
a unanimous vote of the board to veto an arbitration panel’s
decision regarding negotiations between a county employee
union and the county. Cnty. of Sonoma, 93 Cal. Rprtr. at 57.
In deciding whether “unanimous” could be severed from
the statute to cure the impropriety, the court assumed the
word “unanimous” was grammatically and functionally sever-
able. Id. at 62. The court, however, found it was not volition-
ally severable as it could not “be certain that the Legislature
would have enacted the measure without the unanimous vote
requirement” because the Senate bill analysis specifically
referred to it, and because the “Legislature adopted the bill
over the specific objections of local governments to the unani-
mous vote requirement.” Id. Here, there is no such history
with the word “insolent,” nor, as we address below, was it so
essential to § 2-61’s purpose of ensuring the orderly conduct
of the council’s meeting that it cannot be removed.
City of Long Beach also does little to support the dissent’s
argument. There the appellate court held that “the [chal-
lenged] ordinance’s central provision governing the issuance
of [parade] permits unconstitutionally grants unrestrained dis-
cretion whether to grant or deny them, and that the section
cannot be severed from the rest of the ordinance.” Cty. of
Long Beach, 17 Cal. Rptr. 2d at 865 (emphasis added). The
court did not refuse to sever the word “may” as the dissent
suggests, but instead asked whether the whole section that
granted the City Manager improper discretion could “be sev-
ered from the rest of [the] Chapter.”10 Id. at 868. It held that
10
We read City of Long Beach differently than our colleague. First, we
note that the court considered interpreting “may” to mean “shall” as a nar-
10630 ACOSTA v. CITY OF COSTA MESA
the portions Long Beach sought to save were not severable
because the invalidated section was the hub of the statutory
scheme. Id. (“With the pivotal permit-granting function
unconstitutionally structured, these sections have no verbal
anchor or basis.”). Here, § 2-61 is but a part of the City’s
overall scheme to maintain the decorum of City Council
meetings. The sections regulating the behavior of the council
members or audience members do not depend upon § 2-61 for
operation. Nor is the word “insolent” pivotal to the operation
of § 2-61’s subsections, which enumerate examples of con-
duct that could warrant removal for impeding the expeditious
discharge of the Council’s business.
2
To be functionally severable, constitutionally infirm text
must not be necessary to the ordinance’s operation and pur-
pose. Cty. of Long Beach, 17 Cal. Rptr. 2d at 868. Here § 2-
37(a) denotes the purpose of the City Council Meeting regula-
tions as “provid[ing] a guide for the city council and its staff
for the conduct of business and for the preparations of agenda
and minutes for city council meetings.” Section 2-61 meets
the purpose of conducting City Council business by regulating
the decorum of meetings. Generally, decorum ordinances and
regulations aim to reduce disruptions that detract from the
efficiency and effectiveness of orderly public meetings. We
see no reason to interpret § 2-61 as having a different or
unconventional purpose.
rowing construction, not as part of its severance analysis. Compare Cty.
of Long Beach, 17 Cal. Rptr. 2d at 868 (addressing the city’s argument
that “may” could be read to mean “shall”) with id. at 86869 (turning to the
severance argument). Second, even if we characterize the City of Long
Beach’s argument that “may” should have been read to mean “shall” as
a severance argument, it still would not change our analysis as we are not
considering replacing “insolent” with another word that has a completely
different meaning, but simply cutting it from the statute.
ACOSTA v. CITY OF COSTA MESA 10631
[7] Removal of “insolent” does not defeat the central pur-
pose of § 2-61. The central purpose is to prevent actual dis-
ruptions during and impediments to conducting an orderly
council meeting. The remaining portion of § 2-61 stands on
its own and is independently applicable, unaided by the word
insolent. Barlow, 85 Cal. Rptr. 2d at 757. Deeming someone
who “commits disorderly or disruptive behavior” removable
from council meetings once called to order serves that pur-
pose perfectly. Moreover, as a practical matter, it would cer-
tainly be possible for the City to enforce § 2-61 even without
being able to restrict insolent behavior. Nat’l Broiler Council
v. Voss, 44 F.3d 740, 749 (9th Cir. 1994) (per curiam). Sec-
tion 2-61 is functionally autonomous even if we remove the
restriction of insolent behavior.
3
The test for volitional severability examines whether the
legislature’s “attention was sufficiently focused upon the parts
to be severed so that it would have separately considered and
adopted them in the absence of the invalid portions.” Gerken,
863 P.2d at 699 (internal quotation marks omitted); see also
Cnty. of Sonoma, 93 Cal. Rptr. 3d at 62. Volitional severabil-
ity is the most important factor. Katz v. Children’s Hosp., 28
F.3d 1520, 1531 (9th Cir. 1994) (citing Calfarm Ins. Co. v.
Deukmejian, 771 P.2d 1247, 1256 (Cal. 1989)).
In Gerken, the California Supreme Court explained that
part of a statute, or in that case a voter-approved initiative,
can and should be severed and given operative effect where
that part reflects a substantial portion of the purpose of the
legislation. Gerken, 863 P.2d at 699. Furthermore, the remain-
der “cannot be rendered vague by the absence of the invali-
dated provisions or be inextricably connected to them by
policy considerations.” Barlow, 85 Cal. Rptr. 2d at 757.
[8] When courts endeavor to answer this query, they often
consider legislative history or the voter guidance materials
10632 ACOSTA v. CITY OF COSTA MESA
presented with a proposed statute. See, e.g., id. at 70001;
Cnty. of Sonoma, 93 Cal. Rptr. 3d at 63. While we do not
have the type of materials those courts were presented with
here, we do know that Costa Mesa’s ultimate purpose, as
denoted in §§ 2-37 and 2-61—2-64, was to enact a scheme to
regulate the conduct of not only public speakers, but also
audience members and council members, so as to allow the
City Council to conduct orderly meetings. We have said that
all a city council can proscribe are actual disturbances.
Removal of the word “insolent” still meets both the City’s
purpose and our legal requirements.11
This is not an instance like that in City of Long Beach,
where the unconstitutional text was “the hub” of the entire
statutory scheme and “without it the spokes cannot stand.” In
City of Long Beach, Long Beach Municipal Code
§ 560.030(c) unconstitutionally allowed unfettered discretion
to the City Manager in granting parade permits in violation of
the First Amendment. 17 Cal. Rptr. 2d at 868. The remaining
challenged sections required permittees to secure insurance
for the parade and to reimburse the City in the event of dam-
age. The court found that the insurance and reimbursement
provisions were inextricably linked to the permit requirement.
11
Even assuming, as our colleague does, that Costa Mesa made a con-
scious choice to “go further and prohibit ‘insolent’ speech” under § 2-61,
that would not necessarily prevent us from removing that unconstitutional
restriction where we conclude that the legislature would have wanted the
remaining restrictions in § 2-61 to stand. Metromedia, Inc. v. Cty. of San
Diego, 649 P.2d 902, 90608 (Cal. 1982) (“Decisions relating to severabil-
ity of partially unconstitutional legislation, however, envision a larger
judicial role; even if the statute following severability is not what the
enacting body originally intended, the courts can sustain the statute if sev-
erance is mechanically feasible and the legislative body would have pre-
ferred such an outcome to total invalidation.”); see also Katz, 28 F.3d at
153132 (allowing severability under California law even where it “re-
quire[d] construing a statutory term to mean something other than what it
sa[id]”). Furthermore, while not dispositive, we know that Costa Mesa
would prefer excision of “insolent” to complete invalidation of § 2-61 as
the City said so at oral argument.
ACOSTA v. CITY OF COSTA MESA 10633
And this makes perfect sense: without a permit there is no
parade, without a parade there is no potential for damage, and
with no risk there is no need for insurance. Here, however, no
other provision and indeed no part of § 2-61 depends upon the
term “insolent” to be operative—there are no specific conse-
quences or punishments for speakers deemed “insolent” as
opposed to those who are simply “disorderly” or “disruptive.”
Therefore we find it “eminently reasonable to suppose that
those who favored the [ordinance] would be happy to achieve
at least some substantial portion of their purpose.” Gerken,
863 P.2d at 699. Indeed, without the word “insolent,” we see
little change in § 2-61’s ability to meet that goal. And the
remaining text of § 2-61 is severable as it “constitutes a com-
pletely operative expression of the legislative intent.” McMa-
han, 26 Cal. Rptr. 3d at 513.
[9] In sum, we hold § 2-61 as written is facially overbroad
and unconstitutional. We also hold, however, that the offen-
sive word—“insolent”—can easily be excised such that the
remaining text can be severed and § 2-61 saved from com-
plete invalidation.
III
We turn next to Acosta’s claim that the district court
improperly granted summary judgment on his as-applied chal-
lenge to § 2-61 in favor of the City on grounds of public
entity immunity to the extent that he sought damages.
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 chal-
lenges. Facial and as-applied challenges can be viewed as two
separate inquiries. See Bd. of Trs. of State Univ. of New York
v. Fox, 429 U.S. 469, 48286 (1989); Taxpayers for Vincent,
10634 ACOSTA v. CITY OF COSTA MESA
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 Cty.
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 undis-
turbed 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 consti-
tutionally privileged. See Bigelow v. Virginia, 421 U.S. 809,
81516 (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.
B
We review de novo the district court’s decision to grant
summary judgment. Davis v. Cty. 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 sub-
stantive 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-
ACOSTA v. CITY OF COSTA MESA 10635
applied state constitutional claim on grounds of public entity
immunity, but Acosta does not challenge the grant of discre-
tionary 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 per-
son.
(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 stat-
ute, including this part, and is subject to any
defenses that would be available to the public entity
if it were a private person.
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.
[10] 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 constitution-
ally 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 discre-
10636 ACOSTA v. CITY OF COSTA MESA
tionary act immunity.12 Instead he claims that the district court
extended California case law too far in granting the City pub-
lic entity immunity.
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 quali-
fies 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.
[11] 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
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
. . . .”).
ACOSTA v. CITY OF COSTA MESA 10637
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.
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 exer-
cise of authority. See Grossman v. Cty. 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 enti-
tled 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 120203. 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
10638 ACOSTA v. CITY OF COSTA MESA
unconstitutional as to require a reasonable officer not to
enforce it. Id.
[12] 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 the
statute constitutional, the officers here reasonably believed
§ 2-61 was constitutional. During oral argument, strong argu-
ments 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 constitu-
tional 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
[13] “Qualified immunity shields government officials
from civil damages liability unless the official violated a stat-
utory 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 enti-
tled 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 offi-
cer’s conduct violated a constitutional right?” Saucier v. Katz,
533 U.S. 194, 201 (2001). Under the second prong we exam-
ine whether the right was clearly established. Id. To be
“clearly established, the contours of the right must be suffi-
ciently 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 stat-
utory or constitutional question beyond debate.” Ashcroft v.
ACOSTA v. CITY OF COSTA MESA 10639
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 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. Resolu-
tion of both contentions turns on whether probable cause
existed to seize Acosta.
[14] 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 Amend-
ment 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 proba-
ble cause could give rise to a First Amendment violation.”).
Furthermore, at the time of the Council meeting, our prece-
dent had previously upheld restrictions on speech at city
council meetings where the speech was actually disruptive
and this remains the law. See Cty. 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 enti-
tled 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
only if the seizure is supported by probable cause. Dunaway
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.
10640 ACOSTA v. CITY OF COSTA MESA
v. New York, 442 U.S. 200, 214 (1979). To determine whether
there was probable cause, we look to “the totality of circum-
stances 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 admis-
sible in court, it must be “legally sufficient and reliable.”
Franklin v. Fox, 312 F.3d 423, 438 (9th Cir. 2002).
[15] Violations of §§ 2-61 and 2-64 are misdemeanors and
a person in violation of either ordinance can be arrested. Sec-
tion 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 audi-
ence to stand. Then the Mayor called for a recess to end his
disruptive behavior. Acosta remained at the podium and con-
tinued to speak after the Mayor called the recess.
[16] 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 offi-
cers on this claim.14 Thus, even assuming that Acosta was
arrested in retaliation for his remarks, because probable cause
existed for a violation of § 2-61, the officers are still entitled
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. Cty. of Upland, 527 F.3d 853, 865 (9th Cir.
2008). Here, given the Mayor’s repeated directives to 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.
ACOSTA v. CITY OF COSTA MESA 10641
to qualified immunity, not only for the removal of Acosta
from the chambers, but also for his subsequent arrest. Sum-
mary judgment was properly granted in favor of the officers.
The remaining question we must answer is whether the offi-
cers employed excessive force when enacting the seizure and
arrest.
C
[17] When effecting an arrest, the Fourth Amendment
requires that officers use only such force as is “objectively
reasonable” under the circumstances. Jackson v. Cty. of Brem-
erton, 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, 39697
(1989) (internal quotation marks omitted). Furthermore, the
reasonableness must be judged from the perspective of a rea-
sonable officer on the scene and allow for the fact that offi-
cers often have to make split-second decisions under evolving
and uncertain circumstances. Jackson, 268 F.3d at 651.
[18] We find that there was no excessive force here as a
matter of law. The undisputed evidence shows that the offi-
cers used only the force reasonably necessary to remove
Acosta from 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 con-
cedes that he did not leave the podium immediately. Consid-
ering the volatility of the situation and the presence of a large
crowd of hostile demonstrators, the amount of force the offi-
cers 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
10642 ACOSTA v. CITY OF COSTA MESA
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 reasonable-
ness 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 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 state-
ment “absolutely an act in conformity” and “highly relevant”
to the January 3, 2006, meeting.
A
We accord the district court “wide discretion in determin-
ing the admissibility of evidence under the Federal Rules.”15
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 determina-
tion that § 2-61 is facially overbroad does not require reversal of the dis-
trict court on any of these issues.
ACOSTA v. CITY OF COSTA MESA 10643
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 preju-
dicial. See Harper v. Cty. of Los Angeles, 533 F.3d 1010,
1030 (9th Cir. 2008).
[19] 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 error.16
Three videos depicting exactly how Acosta acted at the Janu-
ary 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.
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 their courtrooms when lawyers
approach the podium who are known to the court from prior appearances.
10644 ACOSTA v. CITY OF COSTA MESA
B
We also review the district court’s rejection of a proposed
jury instruction for an abuse of discretion. See Jones v. Wil-
liams, 297 F.3d 930, 93435 (9th Cir. 2002); Duran, 221 F.3d
at 113031. Any error in instructing the jury in a 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 instruc-
tion 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 harm-
less because, as we have already noted, the district court pro-
vided 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 instruc-
tions refer to conduct, the reference was to Acosta’s conduct
at the January 3, 2006, meeting.
[20] 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. He
ACOSTA v. CITY OF COSTA MESA 10645
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 ver-
dict. 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 func-
tions, not those of a judge.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000) (internal quotation
marks omitted).
[21] Here, the jury returned a verdict in favor of the defen-
dants. The evidence presented at trial is easily interpreted to
support a reasonable jury’s determination that the Mayor neu-
trally 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 jury could have found that the
meeting was actually disrupted by Acosta addressing the audi-
ence 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.
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.
10646 ACOSTA v. CITY OF COSTA MESA
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 decid-
ing 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. Fair-
child Indus., 885 F.2d 498, 507 (9th Cir. 1989)).
[22] 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 activi-
ty’s expression — substantially impaired the conduct of the
meeting.” The jury rendered a verdict for the defendants. 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 ordi-
nances in an unconstitutional manner. We affirm the district
court’s denial of equitable relief.
VIII
Section 2-61 is facially overbroad and therefore invalid.
However, the offensive word—“insolent”—can be excised
from § 2-61(a) and the remainder of the ordinance is sever-
ACOSTA v. CITY OF COSTA MESA 10647
able and operative. 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 par-
ties will bear their own costs on appeal.
N.R. SMITH, Circuit Judge, concurring in part and dissenting
in part:
The majority correctly sets forth the rule that, under Cali-
fornia law, an unconstitutional portion of a statute can only be
severed from statutory text if it is grammatically, functionally,
and volitionally severable, regardless of whether the code
contains a severance clause. 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). “All three criteria must be satisfied” for
text to be severable from the remainder of the statute. McMa-
han, 26 Cal. Rptr. 3d at 513. However, because California
precedent makes clear that none of these criteria are met in
this case, I must respectfully dissent from Part II.B of the
opinion. Instead, I conclude that Section 2-61 is unconstitu-
tional in its entirety, rather than just in part.
I.
1. Grammatical Severability
Text is grammatically, or “mechanically severable” only
when it constitutes “physically separate sections of the propo-
sition.” Santa Barbara Sch. Dist. v. Superior Court, 530 P.2d
605, 650 (Cal. 1975). Therefore, the majority is mistaken that
statutory text embedded in the middle of a sentence is gram-
matically severable under California law. The fact that “inso-
10648 ACOSTA v. CITY OF COSTA MESA
lent” has a distinct meaning (a conclusion with which I agree)
does not mean that it is mechanically distinct in a way that
makes it grammatically severable. In fact, the only cases
where California courts have determined that text was gram-
matically severable involved text that was an entirely different
sentence or section of the statute, making it grammatically
“complete and distinct.” People’s Advocate, Inc. v. Superior
Court, 181 Cal. App. 3d 316, 331 (Ct. App. 1986); see
Gerken v. Fair Political Practices Comm’n, 863 P.2d 694,
698 (Cal. 1993) (“Petitioners concede the various remaining
parts of Proposition 73 meet the” grammatically separable
requirement for the severability test, because the severed por-
tion was an entirely separate provision of the statute); Calf-
arm 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 word-
ing of any other provision” (emphasis added)); McMahan, 26
Cal. Rptr. 3d at 513 (“appellants concede[d] the invalid fund-
ing mandate [was] grammatically severable” because it was a
completely separate portion of the statute); Barlow v. Davis,
85 Cal. Rptr. 2d 752, 757 (Ct. App. 1999) (the invalid portion
could be severed because it constituted an “entirely separate
statute grammatically and mechanically from the invalid sub-
stantive provisions”); Briseno v. City of Santa Ana, 8 Cal.
Rptr. 2d 486, 490 (Ct. App. 1992) (the unconstitutional word
did “not even appear in [the] section” at issue); Santa Barbara
Sch. Dist., 530 P.2d 605 (the text severed was a separate and
distinct statutory provision).
The majority cites to no California cases that have allowed
one word (and the two surrounding commas) in the middle of
a sentence to be grammatically severed. However, at least two
California cases dealing with a similar issue refused to sever
one unconstitutional word from a sentence. See Cnty of
Sonoma v. Superior Court, 93 Cal. Rptr. 3d 39 (Ct. App.
2009) (refusing to sever the word “unanimous” from the mid-
dle of text); Long Beach Lesbian & Gay Pride, Inc. v. City of
Long Beach, 14 Cal. App. 4th 312, 326 (1993) (refusing to
ACOSTA v. CITY OF COSTA MESA 10649
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 326-327. Notwithstand-
ing the majority’s attempts to distinguish these cases, the fact
still remains that the California courts were unwilling to sever
one unconstitutional word from a sentence in either case.
To alter subsection (a) as the majority desires would be a
modification that contravenes 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 the distinct section can be “sepa-
rated by [a] paragraph, sentence, clause, phrase or even single
words,” Barlow, 85 Cal. Rptr. 2d at 757, a single word cannot
itself be removed from the middle of a clause or phrase to be
grammatically severable.
Furthermore, 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.” Id.
Here, the City’s severability clause only states that “sections,
paragraphs, clauses and phrases of this Code are severable,”
rather than individual words. City of Costa Mesa’s Municipal
Code § 1-32. Therefore, the severability clause clearly indi-
cates that the City did not intend something less than a phrase
to be grammatically severable, which is also relevant for voli-
tional severability (discussed below).
2. Functional Severability
The majority is correct when it asserts that the constitution-
ally infirm text must not be necessary to the ordinance’s oper-
ation and purpose for text to be functionally severable. Maj.
Op. 10629-30 (citing City of Long Beach, 14 Cal. App. 4th
10650 ACOSTA v. CITY OF COSTA MESA
312). However, the testimony of the Chief of Police makes
clear that city officials relied on the word “insolent” as a key
part of Section 2-61’s purpose of allowing the prohibition of
constitutionally protected speech. For instance, when asked
whether Section 2-61 “allowed [the police] to arrest the per-
sons insolent,” the Police Chief answered, “Yes.” When asked
whether Section 2-61 “was enforced in Costa Mesa” such that
it “would be [a] violation[ ] of the municipal code” to make
“insulting remarks,” the Police Chief also answered “Yes.”
In City of Long Beach, an official charged with enforcing
the ordinance similarly testified that the ordinance could be
enforced in an unconstitutional way. 14 Cal. App. 4th at 326.
The California Court of Appeal explained that when “[f]aced
with this ambivalence by the official charged with enforcing
the section, [courts] cannot depart from its plain language.”
Id. (emphasis added). We can do no different here.
3. Volitional Severability
For volitional severability, “[t]he test is whether it can be
said with confidence that the [enacting body]’s attention was
sufficiently focused upon the parts to be severed [i.e., vali-
dated] so that it would have separately considered and
adopted them in the absence of the invalid portions.” Gerken,
863 P.2d at 699 (alterations omitted). In this case, as in
McMahan, the “text of the initiative underscore[s] its primary
objective.” 26 Cal. Rptr. 3d at 514. Here, not only does sub-
section (a) of Section 2-61 prohibit “insolent” speech, but
subsection (b) prohibits “personal, impertinent, profane, inso-
lent, or slanderous remarks” in part (1), as well as “insolent,
or disturbing action” in part (6). Because so much of Section
2-61 is aimed at prohibiting expressive speech, and this lan-
guage is interwoven with language prohibiting disturbances,
it is not at all clear that the enacting body’s “attention was
sufficiently focused” on the other purpose of only prohibiting
disruptive conduct such that this ordinance would have still
ACOSTA v. CITY OF COSTA MESA 10651
been passed in its constitutional form. See Gerken, 863 P.2d
at 699.
Under the volitional severability analysis, courts must also
“examin[e] the intended function of [the] particular statutory
scheme.” Barlow, 85 Cal. Rptr. 2d at 758; Briseno, 8 Cal.
Rptr. 2d at 490 (analyzing the “overall statutory scheme” to
determine legislative intent). Section 2-61 clearly prohibits
expressive speech through the word “insolent,” whereas the
majority aptly notes that other City ordinances merely pro-
hibit speech that “substantially delays, interrupts or disturbs”
a meeting. Maj. Op. 10651 (citing Sections 2-60, 2-64). 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).
Thus, 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 Sections 2-60 and 2-64 demonstrates that the City
knew how to effectuate an ordinance aimed merely at pre-
venting meeting disturbances. The City’s choice to go further
and prohibit “insolent” speech under Section 2-61 demon-
strates a meaningful difference that we cannot ignore, indicat-
ing that the City intended the prohibition of “insolence” to be
an important aspect of Section 2-61.
The majority also relies on Metromedia, Inc. v. City of San
Diego, 649 P.2d 902 (Cal. 1982), and Katz v. Children’s
Hosp. of Orange County, 28 F.3d 1520 (9th Cir. 1994), for the
proposition that courts can sever a portion of a statute, even
when that is contrary to the legislature’s conscious purpose in
enacting the statute. Maj. Op. 10632 n.11. However,
Metromedia, Inc. actually stands for the opposite proposition.
In Metromedia, Inc., the California Supreme Court explained
that “we know of no precedent for holding that a clause of a
10652 ACOSTA v. CITY OF COSTA MESA
statute, which as enacted is unconstitutional, may be changed
in meaning in order to give it some operation, when admit-
tedly it cannot operate as the Legislature intended.” 649 P.2d
at 908 n.10 (emphasis added) (quoting People v. Perry, 21 P.
423 (Cal. 1889)). Thus, 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. Furthermore, in Katz, the Ninth Circuit was
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. 28 F.3d
at 1531.
The majority’s reliance on the City’s offhanded remark in
favor of severance at oral argument (an argument not briefed
or raised below) is unavailing, because California courts do
not pay attention to a party’s litigation strategy position
regarding the party’s preferences for a statute. In fact, in most
cases it is likely that where California courts decided an
invalid portion of a statute was not severable, the government
entity party to the litigation would have preferred severance.
See, e.g., Cnty. of Sonoma, 93 Cal. Rptr. 3d 39; City of Long
Beach, 14 Cal. App. 4th at 326. Rather, California courts look
to what the intentions were of the enacting body at the time
of enactment. See Gerken, 863 P.2d at 699.
II.
Even if the majority is correct, that Section 2-61 meets one
or even two of California’s three severability criteria, the
majority’s decision to sever “insolent” cannot be sustained.
The failure of a statute to meet any one criteria (grammatical,
functional, or volitional severability) provides an independent
prohibition on a court’s ability to sever text from a statute.
McMahan, 26 Cal. Rptr. 3d at 513.
ACOSTA v. CITY OF COSTA MESA 10653
Further, other California cases have cautioned the use of
statutory tools such as severability in the First Amendment
context when an overbroad statute is at issue. For instance, in
People v. Rodriguez, the court explained that “gradually cut-
ting away the unconstitutional aspects of a statute by invali-
dating its improper applications case by case—does not
respond sufficiently to the peculiarly vulnerable character of
activities protected by the first amendment.” 77 Cal. Rptr. 2d
676, 683 (Ct. App. 1998). For an “overbroad law hangs over
people’s heads like a Sword of Damocles.” Id. (internal quo-
tation marks and alterations omitted); see also In re Berry,
436 P.2d 273, 286 (Cal. 1968) (finding “the doctrine of sever-
ability . . . 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). Therefore, I conclude that
the word “insolent” cannot be severed from the middle of the
phrase in subsection (a).
The majority agrees that subsection (b) of § 2-61 can only
pass constitutional muster if it is somehow limited by subsec-
tion (a). As in City of Long Beach, 14 Cal. App. 4th at 327,
once subsection (a) is struck down as constitutionally infirm,
this results in the “remov[al of] the hub from [the ordinance’s]
wheel, and without it the spokes cannot stand.” Id. Thus, I
conclude that the invalidation of subsection (a) results in the
constitutional collapse of Section 2-61 in its entirety.