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9th Circuit Court Slaps Santa Cruz City Attorney in Mock-Nazi Salute Case
Though there's been no formal opinion yet, the questions asked by the 9th Circuit's rare en banc panel in Pasadena indicated a severe skepticism to the City Council's defense of its false arrest back in March 2002. The likely outcome is that the case will be sent back to San Jose for trial. I detail below some thoughts and links which cover the substance and history of the lawsuit. The real issue is to end Santa Cruz City Council repression of activists there and open up a real public process.
Here are some of the stories and background on the mock-Nazi salute, which I gave City Council silently after they acted repressively cutting off public comment with the threat of arrest,eliminating the comment time of the last three speakers though the actual Oral Communications time had not elapsed.
This is actually the latest in a long series of Council repressive actions targeting me and other critics when there was no actual disruption happening.
The court's questions, if you hear the audio below, seem to indicate their concern with the failure to provide due process at the lower court level (the case was twice dismissed without a trial by Judge White in San Jose Federal Court) through the city's slippery use of an untimely Summary Dismissal motion.
More important was the Court's disbelief that a silent mock-Nazi salute at the microphone during the Oral Communications period was substantively different from one from the side of the room at another time. Or that either disrupted the meeting. (On the video tape you can see Councilmember Fitzmaurice disrupting his own meeting by stopping the meeting with a point of order to demand I be removed, creating his own "disruption")
City attorney Kovacevitch cooked up some tortured arguments to justify my false arrest, claiming there was a City Council policy that allowed signs but not hand signals, and hand signals only during Oral Communications. City Council has no such stated policy posted or in its written rules. It's amazing how brazenly the City can lie in its legal documents and through its attorney. What's surprising is that it's taken 8 years to get to the point where a court sees through such legal camouflage.
The next step is that the court will send the case back to Judge White yet again for a third try at a trial (the City will be tried for damages). We're hoping that the court bans any more Summary Judgment motions prior to trial.
There is a small chance the court may reexamine the City's vague and unconstitutional "decorum rules" that the city is using to justify its policy. The rule in question that supposedly justified my arrest was 0
"While the Council is in session, all persons shall preserve order and decorum. Any person making personal, impertinent, or slanderous remarks, or becoming boisterous or otherwise disrupting the Council meeting shall be barred by the presiding officer from further attendance at said meeting unless permission for continued attendance is granted by a majority vote of the Council."
These rules were held to be constitutional by an earlier court PROVIDED that there's an actual disruption of the meeting, not just a violation of the rules without any disruption. However, city attorney Kovacevitch was arguing before the en banc panel that ANY violation of the rules is itself a disruption. This enables the Mayor (or, as happened in my case, another Councilmember) to order a member of the audience evicted for "personal, impertinent or slanderous remarks"--way too much power and way too broad a definition.
I've discussed the case and the Court's response a bit on my radio show at http://www.radiolibre.org/brb/brb100624.mp3
Attorney David Beauvais and I were interviewed before the hearing:
Audio of the 9th Circuit en banc court's hearing:
Video of the incident:
S.F. Chronicle story:
L.A. Times story:
UCLA Law Review article on the issue:
Sentinel Opinion Piece I wrote last year: http://www.santacruzsentinel.com/ci_13844857?IADID=Search-www.santacruzsentinel.com-www.santacruzsentinel.com
Indybay background on the case:
3-15-10 "Attorney David Beauvais to Discuss Rare Victory in Mock-Nazi Salute Case" at http://www.indybay.org/newsitems/2010/03/13/1...
3-12-10 "Court of Appeals panel Overturns Nazi Salute Ban Ruling--City Council May Face Trial Again" at
11-21-09 "Mock-Nazi Salute Case Appeal" at http://www.indybay.org/newsitems/2009/11/21/1...
7-16-09 "Audio of Federal Court Arguments in Norse "mock-Nazi" salute case" at
4-17-07 "More on the 'Fascist Salute at City Council' Case" at
12-3-04 "Santa Cruz City Council Will Face Trial in mock-Nazi salute case" at
My attorneys' briefs asking the 9th for a rehearing:
Other instances of City Council repression:
Mayor Ignores Latest Brown Act Violations