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9th Circuit Mandates New Trial in Free Speech "Nazi Salute" Lawsuit Against City
by Robert Norse
Wednesday Dec 15th, 2010 10:20 PM
Today the 9th Circuit Court of Appeals granted me a new trial against the City for its actions in harassing, excluding, and arresting me for making a mock-Nazi salute at a March 2002 City Council meeting after the Mayor had threatened a diminutive peace activist with arrest for stepping up to the microphone in search of her Oral Communications time. I'll be posting a link to the full decision shortly, But in the meantime, I invite Free Speech advocates to savor a few of the phrases used by the unanimous court as well as a few stronger ones used by the two judges who would have defended my rights even further.
In an earlier article ("9th Circuit Court Slaps Santa Cruz City Attorney in Mock-Nazi Salute Case" at http://www.indybay.org/newsitems/2010/06/28/18652079.php), I I discuss the 10-judge hearing down in Pasadena this summer and how badly City Attorney Kovocevitch's arguments came off. For once, it seemed, judges were actually listening.

This case concerns the civil rights of advocates in a stacked forum (City Council) which has traditionally been hostile to homeless civil rights on the streets. Many people rightly wonder, "why bother with City Council anyway?" After years of frustration, I don't really have a good answer.

A body stacked with neo-liberal gentrification maestros masquerades as progressives or "moderates". It has legislated away civil rights for the poor on the streets and continues to make the act of sleeping at night outside (in a city with no shelter for 85% of its homeless). The point: to establish a "comfort zone" for the frightened and prejudices, whose legitimate concerns about housing, health care, jobs, the war, and the economy are being displaced onto "the smelly homeless". "Quality of life" is to be regained under this deluded theory by driving the poor out of sight and out of town instead of ending the economy-devouring Imperial War Machine and the lopsided wealth distribution.

Some courts, w can see, still defend the right to attend a Council meeting and speak there for three minutes (even if you can't get your subject on the agenda). But this whole issue doesn't mean much in the day-to-day homeless life where basic concerns are denied like the basic right to sleep legally somewhere), the right to not have one's property searched and seized arbitrarily, the right to protest these conditions, the right to fair treatment by public agencies and private businesses, etc.

Still, while I'd have much preferred to see a successful assault on the Sleeping Ban (as was the case in L.A., San Diego, Fresno, and Laguna Beach), this seemed a good well-documented opportunity to force the City Council to cut back on its repression. This arrest in March of 2002 was the latest in a cycle of repressive incidents.

The cycle of repression has continued. With Mayor Coonerty coming back into power with a right-wing majority on the Council, the federal courts and the streets may be the only avenues of redress.

Hopefully this court decision--and a subsequent victory in the trial--will make the Coonerty Council and its cops more reluctant to stifle regular human dialogue and protest at City Council. And perhaps cut short some of its homeless-ophobia downtown.


There were some strong and encouraging statements made by the 10-judge panel:

THE ENTIRE 10-JUDGE PANEL unanimously wrote:

"The City contends that only certain portions of its meetings are limited public forums and that no members of the public have any First Amendment rights at all once the public comment period has concluded. The City cites no support for this proposition, and there is none.

In City of Norwalk, we held that city council meetings, once open to public participation, are limited public forums. 900 F.2d at 1425. A council can regulate not only the time, place, and manner of speech in a limited public forum, but also the content of speech—as long as content-based regulations are viewpoint neutral and enforced that way.

What a city council may not do is, in effect, close an open meeting by declaring that the public has no First Amendment right whatsoever once the public comment
period has closed. As we explained in Norwalk, the entire city council meeting held in public is a limited public forum. But the fact that a city may impose reasonable time limitations on speech does not mean it can transform the nature of the forum by doing so, much less extinguish all First Amendment rights. A limited public forum is a limited public forum. Perhaps nothing more, but certainly nothing less. The City’s theory would turn the entire concept on its head.

Thus, even though we can tell from the face of the amended complaint that Norse’s provocative gesture was made after the public comment period closed, Norse still had a First Amendment right to be free from viewpoint discrimination at that time. The City’s argument proves the danger of its theory. The City contended at oral argument before us that, because the public had no First Amendment rights after the public comment period had closed, the Council could legitimately eject members of the public who made a “thumbs down” gesture, but allow members of the public who made a “thumbs up” gesture to remain.11

We note that we have been unable to find a single First Amendment case where a person has the right to be in a place but has no First Amendment rights once there. Rather, the First Amendment test itself accounts for the nature of the forum and, at its most restrictive, only permits viewpoint neutral restrictions that are “reasonable in light of the purpose served by the forum.”) (“[S]tudent First Amendment rights are applied in light of the special characteristics of the school environment.”) (“[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system.”).

When queried at oral argument whether that action would constitute classic viewpoint discrimination, the City responded that it was “just human nature.” We decline the City’s invitation to rewrite First Amendment law to extinguish the rights that citizens have when they attend public meetings.

We also decline the City’s invitation to rewrite the rule announced in Norwalk. There, we held that a city’s “Rules of Decorum” are not facially over-broad where they only permit a presiding officer to eject an attendee for actually disturbing or impeding a meeting. In this case, the City argues that cities may define “disturbance”
in any way they choose. Specifically, the City argues that it has defined any violation of its decorum rules to be a “disturbance.” Therefore, it reasons, Norwalk permits the City to eject anyone for violation of the City’s rules—rules that were only held to be facially valid to the extent that they require a person actually to disturb a meeting before being ejected.

We must respectfully reject the City’s attempt to engage us in doublespeak. Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption. The City cannot define disruption so as to include non-disruption to invoke the aid of Norwalk.

The city officials are not entitled to absolute immunity. Local legislators are absolutely immune from liability... But “not all governmental acts by . . . a local legislature[ ] are necessarily legislative in nature.”. “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the
official performing it.” Thus, we must determine whether the actions of the Council members, when “stripped of all considerations of intent and motive,” were
legislative rather than administrative or executive.

In this Circuit, we have developed a four-part test to determine whether an action is legislative in nature. We consider
(1) whether the act involves ad hoc decisionmaking, or the formulation of policy;
(2) whether the act applies to a few individuals, or to the public at large;
(3) whether the act is formally legislative in character; and
(4) whether it bears all the hallmarks of traditional legislation.”

In this case, we are dealing with city officials who ejected one individual from City Council meetings. Separately, and with regard to his argument for municipal liability, Norse argues that the officials were formulating policy. We need not determine whether the ejections “effectuate[d] policy,” because the second, third, and
fourth factors clearly point to this being an administrative rather than legislative act. Thus, Krohn, Kennedy, and Fitzmaurice are not entitled to absolute immunity for their part in removing Norse from the meetings. Although the record is incomplete, it appears that in both 2002 and 2004 Norse was singled out for expulsion and arrest. Mayors Krohn and Kennedy did not take any formal legislative action, but rather ordered Norse out of the room. And both expulsions lacked the hallmarks of the legislative process.

With respect to the 2002 arrest, Krohn ordered Norse to leave on Fitzmaurice’s motion without any debate. The motion was predicated on the “dignity” of the council rather than the council’s performance of its obligations to the citizens of Santa Cruz. And with respect to the 2004 arrest, the record does not reveal a motion based even on dignity, let alone a legislative decisionmaking process. Thus the decisions to expel Norse were administrative, not legislative, so the defendants are not entitled to absolute immunity.




Chief Judge KOZINSKI, with whom Judge REINHARDT ADDITIONALLY WROTE:

I join Judge Thomas’s opinion because it’s clearly right. I write only to observe that, even after the procedural irregularities that deprived Norse an opportunity to present evidence,

it’s clear that the council members aren’t entitled to qualified immunity. In the Age of YouTube, there’s no need to take my word for it: There is a video of the incident that I’m “happy to allow . . . to speak for itself.” see http://www.youtube.com/watch?v=ZOssHWB6WBI (last visited Nov. 16, 2010).

This video (also found in the record) clearly shows that Norse’s sieg heil was momentary and casual, causing no disruption whatsoever.

It would have remained entirely unnoticed, had a city councilman not interrupted the proceedings to take umbrage and insist that Norse be cast out of the meeting.
Councilman Fitzmaurice clearly wants Norse expelled because the “Nazi salute” is “against the dignity of this body and the decorum of this body” and not because of any disruption. But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech.

The Supreme Court long ago explained that “in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Even in a limited public forum like a city council meeting, the First Amendment tightly constrains the government’s power; speakers may be removed only if they are actually disruptive.

We’ve said so twice. In White v. City of Norwalk,we explained that speech must “disrupt[,] disturb[ ] or otherwise impede[ ] the orderly conduct of the Council meeting” before the speaker could be removed. ...We upheld a spectator’s ejection from a public meeting only because he was “disrupting the proceedings by yelling and trying to speak when it was not time for” discussion..

Had he been given a chance, Norse could no doubt have presented lots more evidence that he never disrupted the Santa Cruz council meeting, but what would have been the point? The video speaks for itself: Norse raises his hand in a brief, silent protest of the mayor’s treatment of another speaker. The mayor ignores Norse’s fleeting gesture until Councilman Fitzmaurice throws a hissy fit.

“Listeners’ reaction to speech is not a content-neutral basis for regulation. . . . Speech cannot be . . . punished or banned[ ] simply because it might offend a hostile” member of the Santa Cruz City Council. The council members should have known that the government may never suppress viewpoints it doesn’t like. Though
defendants point to Norse’s reaction to Councilman Fitzmaurice as the “disruption” that warranted carting him off to jail, Norse’s calm assertion of his constitutional rights was not the least bit disruptive.

The First Amendment would be meaningless if Councilman Fitzmaurice’s petty pique justified Norse’s arrest and removal.

Even viewing the facts most favorably to the city council members, their behavior amounts to classic viewpoint discrimination for which they’re not entitled to qualified immunity. And that’s what the district court should have held when it set about resolving qualified immunity as a matter of law. If it was going to take it upon itself to grant summary judgment to anyone on that issue, it should have been to Norse.

On remand, the district court can set things right by holding, as a matter of law, that the city council members are not entitled to qualified immunity, and proceeding to assess damages.


ATTORNEY BEAUVAIS TO DISCUSS CASE THURSDAY DECEMBER 16TH ON FREE RADIO SANTA CRUZ

At 7 PM one of the two attorneys who argued the case before the court (and has fought this battle before a district judge (twice) and the court of appeals (twice) will discuss the case and its significance at 101.1 FM (http://www.freakradio.org). Call in questions and comments at 831-427-3772.


BACKGROUND

More background on the case can be found at http://www.indybay.org/newsitems/2010/06/28/18652079.php ("9th Circuit Court Slaps Santa Cruz City Attorney in Mock-Nazi Salute Case")
§Additional Info
by Robert Norse Thursday Dec 16th, 2010 10:46 PM
It was an 11-person en banc panel of the court not a 10-person panel decision.. (One of the guys participated by video from Seattle.)

David Beauvais (one of the two attorneys who argued the case) joined me in a lengthy phone interview on Free Radio Santa Cruz tonight. It should be shortly archived at http://www.radiolibre.org/brb/brb101216.mp3 about an hour into the audio file.

The 11-person hearing can be seen and heard at http://www.ca9.uscourts.gov/media/view_subpage.php?pk_vid=0000005940 .

The complete court decision is available at http://www.ca9.uscourts.gov/datastore/opinions/2010/12/15/07-15814.pdf .
§"Hissy Fit" by "Der Fuhrer" Council Doesn't Justify Exclusion and Arrest
by Robert Norse Saturday Dec 18th, 2010 10:20 AM
Reprinted from Courthouse News with a tip of the hat to Becky Johnson for forwarding me the story


Court Finds Free-Speech Issue in Nazi Salute
By TIM HULL
December 15, 2010
found online at: http://www.courthousenews.com/2010/12/15/32629.htm

(CN) - The 9th Circuit on Wednesday revived the First Amendment claim of a man who was kicked out of a Santa Cruz City Council meeting for giving a Nazi salute. Chief Judge Alex Kozinski wrote that a councilman's ensuing "hissy fit" may have disrupted the meeting more than the silent gesture.

Robert Norse was ejected from a Santa Cruz City Council meeting and arrested in 2002 for giving the board a "silent Nazi salute."

A full panel of the Pasadena-based federal appeals court ruled that the district court had failed to give Norse adequate notice and an opportunity to present evidence before dismissing his complaint in 2004.
In a separate, concurring opinion, joined by Judge Stephen Reinhardt, Kozinski said the incident would not have caused any disturbance if Councilman Tim Fitzmaurice had not thrown "a hissy fit."

"Councilman Fitzmaurice clearly wants Norse expelled because the 'Nazi salute' is 'against the dignity of this body and the decorum of this body' and not because of any disruption," Kozinski wrote. "But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech."

Norse challenged the council's decorum policy in California district court, claiming that the ejection and arrest violated his right to free speech.

The district court dismissed the action, and a three-judge panel of the 9th Circuit affirmed in part, finding that the council's policy did not necessarily violate Norse's rights as it only banned disruptive behavior. The panel could not decide whether the Nazi salute as used by Norse at the meeting was disruptive, and remanded the issue. While the present appeal was pending in 2004, Norse was ejected from another council meeting and arrested again, this time for "whispering," the ruling states. Norse added the new arrest to his complaint.
The day before Norse's trial was set to begin, Senior District Judge Ronald Whyte granted summary judgment to the city based on qualified immunity. The 9th Circuit panel affirmed, but later agreed to rehear the issue before a full panel.

"Because the district court failed to provide Norse adequate notice and opportunity to be heard, among other procedural errors, we reverse the judgment of the district court," Judge Sidney Thomas wrote for the 11-judge panel on Wednesday.

The district court gave Norse only two days notice of its intent to hear summary judgment arguments, instead of the required 10 days notice, the panel found. Also, the court neglected to give Norse a "full and fair opportunity to ventilate the issues," about which there were several questions of fact, Thomas wrote. Prior to summary judgment, Norse filed a motion to exclude evidence related to other city council meetings he had attended. He also objected to the video evidence in the trial, which he claimed was edited and did not accurately portray what had happened.

"The district court failed to issue a final ruling on any of these objections," Thomas wrote. "The DVDs show triable issues of fact as to whether Norse was impermissibly ejected because of his viewpoint rather than his alleged disruptiveness."
The city argued that it was immune from Thomas' claims because members of the public only have First Amendment rights during a set "public comment period" - an argument that Thomas rejected.

"The fact that a city may impose reasonable time limitations on speech does not mean it can transform the nature of the forum by doing so, much less extinguish all First Amendment rights," Thomas wrote. "A limited public forum is a limited public forum. Perhaps nothing more, but certainly nothing less. The city's theory would turn the entire concept on its head."
The panel reversed summary judgment on Norse's free-speech claims, but it found that his false arrest and excessive-force claims against the police officer who removed him from the meeting had been properly dismissed.

"In both 2002 and 2004, Norse actually spoke verbally, in violation of the rules of decorum, in response to council members' attempts to eject him from the council chambers," Thomas wrote. "Based on these facts, a reasonable officer could have believed that probable cause existed to arrest Norse for ... disturbance of a public assembly or meeting."
§NORSE v. SANTA CRUZ
by repost Monday Dec 20th, 2010 12:06 PM

§Video of Robert Norse "Nazi Salute"
by repost Monday Dec 20th, 2010 7:12 PM
Copy the following to embed the movie into another web page:
download video: norse_arrest_nazi_salute.rm (15.4MB)

http://santacruz.indymedia.org/media/all/display/2461/index.php

Mayor Christopher Krohn threatens to have anti-war activist, Susan Zeman removed from the council chambers when she attempts to speak at the oral communications portion of the meeting. Zeman had been in a group which Krohn had earlier indicated would be allowed to speak. As Zeman left the podium, not having been allowed to speak, homeless activist Robert Norse gave the Mayor a "Heil Krohn" 1 1/2 second, silent hand gesture in response. Krohn did not even see it. Councilmember Tim Fitzmaurice interrupted the proceedings to complain, and insist that Norse be removed from the chambers. Krohn had Norse arrested, handcuffed, and jailed for what he believed to be his first amendment rights. Norse was never prosecuted, but later filed a Federal lawsuit for false arrest.
Becky Johnson's informative background piece (http://beckyjohnsononewomantalking.blogspot.com/2010/12/victory-for-1st-amendment-in-nazi.html) has an interesting link to a thread written in 2004. Check out http://santacruz.indymedia.org/newswire/display/7898/index.php .

In January of 2004 then-Mayor Kennedy had me arrested for "ignoring three warnings" that I was "disrupting the Council". The first warning was apparently directed to a group of 10-15 people who walked once around the room silently with signs and then left. This was after Kennedy had moved Oral Communications to an uncertain time at the end of agenda with the effective result of making public comment difficult.

Some minutes later, a media reporter covering the homeless protest (dramatizing the number of dead who had died in 2003) asked me to have Doug McGrath, a homeless activist sitting inside City Council, to speak with him. I went in and quietly whispered to him that he was wanted outside. As I turned to leave with him, Mayor Kennedy interrupted the meeting to loudly announce, "Mr. Norse, this is your second warning."

Taken off guard, I turned and asked "what was my first?" "Third warning," he concluded, "leave the chambers". I did leave, but returned subsequently and sat quietly, as was my right. In response, Kennedy had me arrested. Again on the bogus charge of "disrupting a public meeting". The charge never made it to the D.A.'s office, though I was handcuffed and taken away.

This false arrest was included in the lawsuit and will be a companion charge at trial in San Jose later this spring, assuming the City doesn't settle or appeal to the Supreme Court.

Subsequently Kennedy lied (or misspoke, if you want to be generous) and claimed in print that I'd been "convicted of disrupting a public meeting" in the March 2002 mock-Nazi salute incident. A letter from attorney Kate Wells, persuaded him to make a grudging retraction.

For those interested in the history of City Council repression, I encourage people to check out the link at http://santacruz.indymedia.org/newswire/display/7898/index.php, both the story itself and the comments that follow. The writing includes lots of specifics on the repressive behavior of one of the three Mayors who face a lawsuit (Kennedy--the other two are Fitzmaurice and Krohn).

Comments  (Hide Comments)

by Becky Johnson
Thursday Dec 16th, 2010 7:42 AM
Congratulations to Robert Norse, David Beauvais, and Kate Wells for their perseverance with this case. It is refreshing to hear that the 9th Circuit Court of Appeals still believes in supporting the first amendment. I was beginning to wonder.

Perhaps the 9th will also agree to review the "rules of decorum" which outlaw any speech which is contemptuous of the council?
by DW
Thursday Dec 16th, 2010 7:44 AM
Fresno has an identical policy. People can (and have been) ejected from City Council meetings for "disturbing" meetings. "Disturbances" have included being critical of the Council as a whole or of individual members, criticizing city policy, and objecting to another speaker's comments (aka "personal attacks").
should be the headline
by Leni Riefenstahl
Thursday Dec 16th, 2010 4:11 PM
Congratulations, Robert! Alles erlös nach plan! Sieg Heil!

by Der Führer
Thursday Dec 16th, 2010 6:35 PM
Tim Fitzmaurice is an un-American piece of trash. Shame on him. I think it's pretty funny that he's going to go down in history as the petty fascist who threw a hissy fit and had his gestapo thugs arrest an activist for exercising his free speech rights. It was nice of the Court to point that out and memorialize it on the record for us.
by satirist
Thursday Dec 16th, 2010 7:07 PM

by A
Friday Dec 17th, 2010 6:36 AM
This case should have been won long ago. I am glad to seem some positive possibilities for the court to reflect our Constitution and the rights of free speech for all.
by HUFF
( rnorse3 [at] hotmail.com ) Friday Dec 17th, 2010 12:27 PM

Article from the LA Daily Journal 12/16/10...

Article from the L.A. Times 12/16/10...

Article from S.F. Chronicle (SFGate) 12/16/10...
by Lower Ocean Heights
Friday Dec 17th, 2010 2:48 PM
Ain't it strange that a site that promotes itself as a "tool for creation of radical accurate and passionate tellings of truth" actively censors posts from it's users? I've posted a couple of times to this thread to speak my truth that Robert Norse is a person that has no concrete solutions to our communities' issues. And those posts have so far, always been deleted. Et tu, indybay post nazis?
by indybay reader
Friday Dec 17th, 2010 3:11 PM
... do not amount to "tool[s] for creation of radical accurate and passionate tellings of truth." the issues here are the nazi salute and free speech. attacks against Robert Norse are not germane to these issues and therefore should be excluded from this discussion. and I'm just a poster; not a moderator.
by Not A Jew
Sunday Dec 19th, 2010 11:50 AM
Putting a Nazi cap on Fitzmaurice is tasteless and not funny and clueless and just plain politically stupid. What point are you trying to make here? Or are you trying to make Norse look bad (not that this is hard) and sabotage his credibility on this issue? Norse made a fleeting gesture to indicate that the Council was engaging in fascistic behavior, maybe even acting like a bunch of Nazis in the way they were managing public comment. He wasn't implying that Fitzmaurice was a Nazi himself.

Fitzmaurice was obviously too thin skinned to serve in public office, but I can see (barely) why a Nazi salute implying that he was a fascist might upset him. I'm sure far more people would be upset by a literal rendering of him as a Nazi. This is counter-productive, and in bad taste.
by satirist
Monday Dec 20th, 2010 9:51 PM
first of all, it's satire, and it was funny, so relax. Robert Norse was the one who suggested that the behavior of the city council, including Fitzmaurice, was Nazi-like. Judge Alex Kozinski of the Ninth Circuit joined in that suggestion in his concurring opinion by comparing Fitzmaurice to Der Führer due his inability to "tolerate offensive or irritating speech." i thought it was pretty funny for a federal judge to basically call the guy a Nazi, so I made a little thingy there. CTFD.
by a
Tuesday Dec 21st, 2010 9:21 AM
I find it funny how someone always misinterprets satire and takes such things literally. The poster is funny. No harm no foul.
by Becky Johnson
Tuesday Dec 21st, 2010 1:25 PM
Tim Fitzmaurice objected to Norse's brief, stiff-armed 'salute' and dubbed it a "Nazi Salute." Fitzmaurice, who is Catholic, later claimed that his wife, who IS Jewish, would have objected if she'd been there. She wasn't. Norse himself is Jewish. Chief Justice Alex Kozinski is also Jewish, and for kickers, is the son of two holocaust survivors, claiming he personally experienced having rocks thrown at himself in his native Romania when he was young and his family walked to synagogue, so he should be extremely sensitive to slights against the Jewish people and the horrors of Nazism. So this Jewish judge, the son of holocaust survivors, called a non-Jew married to a Jew, & claiming to be defending Jews "der Fuhrer" (ironically, ANOTHER expression that the Jewish Norse had been censored for using at a Santa Cruz City Council meeting by then- mayor, Fitzmaurice -- that time DURING Norse's legal public comment time) when he defended his Jewish wife from offense when a Jew used the "Nazi" gesture to paint the council as Nazi-like.

Seems that the son of holocaust survivors and a sitting Jewish judge is more offended by Nazi-like behavior by government authorities than whether Jews are offended by someone satirically using Nazi expressions.
by Becky Johnson (posted by Robert Norse)
Tuesday Dec 21st, 2010 4:49 PM
For history buffs, here's the 8 1/2 year old press release that HUFF issued at the time. Thanks again, to Becky Johnson, who not only wrote the release but unearthed it from the HUFF archives. More important, Johnson caught the whole thing on video which should have sealed the issue and resulted in an apology and a chance in the decorum rules. Instead, we've had 8 years of City Council posturing, hundreds of thousands of dollars in expenses, and a continuing pattern of repression. ---R. Norse


HOMELESS UNITED FOR FRIENDSHIP & FREEDOM

309 Cedar St. PMB 14B -- Santa Cruz, Ca. 95060

(831) 423-HUFF e-mail for Robert Norse
rnorse [at] hotmail.com

Norse Arrested by Mayor Krohn for Non-obscene Silent Gesture, Charged with Disrupting a Meeting

March 12, 2002

by Becky Johnson



Santa Cruz, Ca. -- Mayor Christopher Krohn promised on his election as mayor to make the city council chambers more welcoming to the public. He also promised to protect and expand public participation in City Council meetings. But for the past two meetings, and without precedent, Mayor Krohn has limited oral communications to 2 minutes per speaker. Some felt he cut off the public comment before the 30 minutes were up. "And Krohn engaged some speakers in a dialogue that used up even more of the public's time to speak," homeless
activist Robert Norse complained.

At the March 12th meeting, Norse waited in line to speak. But when his turn arrived, he was told to wait until the end of the line as he had been allowed to speak at the previous City Council meeting. Norse sat down but was concerned that the dialogue the Mayor engaged in with some of the speakers would take time away from the later speakers. As Susan Zeman approached the microphone, Krohn cut her off. She stood briefly at the podium and asked that she be allowed to speak. Krohn ordered her to "step away from the podium or you will be arrested." Another person called out asking the Mayor to extend oral communications for the last three speakers. Krohn ignored the request.

Norse, speaking from Santa Cruz County Jail explained what happened. "I raised my hand in a silent salute to the fuhrer. I reacted to Krohn's autocratic process. He didn't allow for the time he had spent in dialogue with some of the speakers."

Councilmember Tim Fitzmaurice, who has exhibited open hostility towards Norse at numerous previous meetings, urged the mayor to expel Norse from the chambers for "giving a Nazi salute." Fitzmaurice, when mayor, had threatened Norse with expulsion on frequent occasions, once for saying "flunky" and another time for using he word "fuehrer". Krohn parroted Fitzmaurice's request and ordered Norse from the chambers. Norse responded with "Mr. Mayor, the Brown Act allows me to attend this meeting," and sat down. Scott Kennedy suggested a 5 minute break and Krohn called for a brief recess.

During the recess, Sgt. Loren Baker approached Norse and asked him to leave the council chambers. Norse insisted he had a right to stay and was placed in handcuffs although the meeting was still in recess. He was initially informed he was being charged with trespass. Then he was held by Officer Brandt in a police car for several minutes repeatedly demanding to know what he was being arrested for. Brandt finally received word on his radio from Sgt. Baker that Norse was being charged for disrupting a meeting. The misdemeanor is punishable by up to a year in jail and a $1000 fine.

Norse commented on the reason for the arrest. "To think you can punish someone for a silent gesture of disapproval -- that is fascism. You are punishing people based on the content of their statement. I didn't disrupt the meeting. Krohn disrupted his own meeting."

Once he had been informed of what he was being arrested for, Norse determined the arrest was based on a citizen complaint, presumably that of Mayor Krohn. Norse demanded that Sgt. Baker immediately take his citizens complaint of false arrest by Krohn. Baker refused.

"When the Mayor can direct people he doesn't like removed from a public meeting on fear of arrest, it means there's no democratic process left at all," Norse explained.

"I want to point out that my raising my hand in a gesture of disapproval is no indication that I have any sympathies at all for fascism. In fact the reason I did that was to indicate my contempt for the kind of fascist move the mayor was making; breaking his own rules and cutting off the last speaker."

Norse is currently being held in Santa Cruz County Jail.

For more information, call Becky Johnson at (831) 429-8529.
by Robert Norse
Wednesday Dec 22nd, 2010 8:53 PM
Though "Topix", the former comment forum on Santa Cruz Sentinel articles (since displaced by another comment stream), is hardly a neutral place, if you'd like to read criticism and response, check out http://www.topix.com/forum/city/santa-cruz-ca/TESTJD7GJTQ97DUH2#lastPost.

And thanks to Becky Johnson for what she's written, though I usually think she's wasting her time and energy replying to hostile bullying anonymous posters.
by sue the oppressor
Thursday Dec 23rd, 2010 12:39 AM
no absolute or qualified immunity for the former city council members.
they may end up owing hundreds of thousands of dollars in fees.
high price for vain dignity.
they may lose their homes and become homeless themselves.

ironic!


by Robert Norse
Thursday Dec 30th, 2010 7:36 AM
http://www.nytimes.com/2010/12/30/opinion/30thu4.html?nl=todaysheadlines&emc=tha211
December 29, 2010
Speech, Cranky and Free

To the City Council in Santa Cruz, Calif., Robert Norse was a pest long before he sued it. An old-fashioned (and full-time) activist,
he championed the city’s homeless and showed up regularly at meetings, making cranky comments and daring members to lose their cool.

Which they did, in March 2002, in an incident viewable on YouTube. As a gesture of silent protest when the Council asked someone else to
stop talking, Mr. Norse raised his left arm in a Nazi salute. He was thrown out of the meeting, arrested when he refused to leave and
released without charges. Mr. Norse then sued the city and Council members for infringing on his First Amendment right to sound off. But,
on the eve of the trial and on his own motion, the trial judge threw out the case because, he said, the people Mr. Norse sued had official
immunity.

On Dec. 15, the United States Court of Appeals for the Ninth Circuit unanimously sided with Mr. Norse. In a tart and persuasive opinion,
Judge Sidney Thomas said that in ruling on his own motion — sua sponte — and without adequate notice, the trial judge had not given
Mr. Norse a fair chance to be heard and had thus abused the legal process.

He also made plain that even a guy who’s a pest can count on the protections of the First Amendment. It’s all right to set reasonable
time limits on public comments, Judge Thomas said. But if you have a right to be in a place, the right to free speech comes with you.

As the Ninth Circuit’s chief judge, Alex Kozinski, wrote in a concurring opinion about what he saw on the YouTube video, it “clearly
shows that Norse’s sieg heil was momentary and casual, causing no disruption whatsoever.” Mr. Norse is not the only beneficiary of the
appellate court ruling. All of us who value free speech, even when it is obnoxious, are stronger for it.


NOTE BY NORSE:

The editorial misstates a lot of important details.

Like the fact that the Council's response was the latest in a long line of actions designed to specifically shut me up because of the specifics of my criticisms (having to do with the criminalization of the homeless). The devices used by the City Council have become increasing baroque and byzantine. Selectively giving me less time to speak than other speakers, creating new rules that limited any speech during the important Consent Agenda, limiting that speech further by requiring speakers get "permission" of a Council member to discuss an item on that agenda, walking out on me during my presentation and then having a police officer force me out of the meeting when I attempted to continue, assailing me by name from the podium without allowing a right of reply, preventing me from bringing in visual aids, criminalizing signs I held up from the side of the room as "distracting", turning off my microphone during Oral Communications to stop me from discussing the illegal police arrest of a homeless man, interrupting me when I attempted to refer to offending Council members and police officers by name at the public microphone, allowing a police officer to physically assault me in a meeting with no arrest announced....

More important than my own experience has been the use of these measures and other undemocratic measures against other speakers--some of whom were dealt with even more harshly for simply trying to assert First Amendment and Brown Act rights to speak for a limited time on a limited subject.

Homeless activist James Nay was specifically targeted by the Mayor prior to the meeting and singled out for arrest in a piror arrangement with then Sgt. Vogel in 2000. When City Council candidate David Silva tried to bring petitions before the Council in 1996, Mayor Rotkin made no objection when Sgt. Andy Crain flung him out the door and into a stone pillar, essentially ending Silva's bid for the Council and injuring Silva--who had AIDS (1996). A dozen members of the public were barred from City Council in 1993 at the instigation of then Mayor Neal Coonerty after an earlier "Homes Not Jails" demonstration.

The Council never acknowledges, apologizes, or corrects such actions. They don't mind spending hundreds of thousands of dollars of city money to defend their misbehavior in court. Even in this case where the videotape clear shows it was the Council itself that disrupted its own business in order to punish me for a brief silent gesture in response to the Mayor's repressive behavior against other members of the public.

Dismissing what I was doing as fbeing "a pest" or getting them to "lose their cool" both trivializes and empties my work of its content. I was jailed not just "arrested and released without charges" the real point is the Council's refusal to rein in police misconduct, to sanction it in fact, over a period of decades, against homeless people. And to repress critics who insisted on bringing the issue back to them again and again--within the cramped legal framework they had set up. Even that limited exposure was too much for them.

The arrogance of public officials is breathtaking, and the city attorney finally overreached in blandly inisisting that non-disruptive criticism at the Council could be criminalized by calling it "a violation of the rules". And suggesting that all expressions of opinion outside oral communication, silent or spoken, could be eliminated and repressed at the discretion of the Council.

To characterize what I did as merely "obnoxious" ignores the the context and dignifies the abuse of power as something understandable and forgivable instead of being ongoing and threatening to the goal of real democratic participation.

As I stated in 2002 when this case first began, what is needed is a change in Council rules and procedures to stop a pattern of repression and protect future speakers.

Sadly, I don't think the Coonerty Council is going to be interested in change, but will simply throw more money at their City Attorney to save face, and more important, retain illegitimate power.

Even more sadly, this kind of misbehavior has its broader consequences in the community. The recent diktat that people will "not be allowed" to walk in a parade on New Year's Eve is an outrageous but predictable expansion of the breathtaking arrogance of city officials who feel their will is law.
by David J. Derrick
( trackintracks [at] yahoo.com ) Thursday Dec 30th, 2010 9:34 AM
THEY ARE THE TOOLS OF THE GOVERNMENT AND INDUSTRY TOO!
BECAUSE THEY ONLY BELIEVE THEY CAN REGULATE YOU!
SO DONT JUST SMILE AND TAKE IT!
THEY WILL TURN YOU AWAY!
CAUSE THEY DONT LISTEN TO WHAT YOU SAY!
THEIR GONNA BURN DOWN YER HOUSE AND LEAD YOU TO STRAY!
TO THE RICH AND THE POWERFUL ITS JUST ANOTHER DAY.
WHILE THEY BEND YOU AND RAPE YOU !
AND TAKE EVERY THING AWAY!
by (posted by) Robert Norse
Thursday Dec 30th, 2010 10:25 AM
Council meeting attendee who made Nazi salute still had a First Amendment right



http://westlawnews.thomson.com/California_Litigation/Insight/2010/12_-_December/Council_meeting_attendee_who_made_Nazi_salute_still_had_a_First_Amendment_right/

The 9th Circuit has ruled that even though a city council meeting attendee's Nazi salute was made after the public comment period closed, he still had a First Amendment right to be free from viewpoint discrimination at that time.

After being ejected from two city council meetings and arrested after giving the council a silent Nazi salute, appellant Robert Norse filed a civil rights suit in California's northern district under 42 U.S.C. § 1983 against appellees including the city of Santa Cruz and its mayor, alleging violation of his First Amendment rights.

The district court granted the city's motion to dismiss, Norse appealed, and the court of appeals reversed and remanded.

On remand, Norse amended his complaint to challenge another ejection that had occurred while his appeal was pending. The district court gave the parties less than six months to conduct limited discovery, and did not permit Norse to submit further evidence regarding his opposition to summary judgment and the admissibility of evidence regarding city council meetings.

After what amounted to two-days' notice, the district court sua sponte granted summary judgment against Norse, finding that the individual defendants were entitled to qualified immunity and that the city could not be held liable.

Norse again appealed, and the court of appeals affirmed. The court of appeals later voted to rehear the case en banc. The city argued that it was entitled to judgment as a matter of law, either on the pleadings or based on other undisputed facts.

Sua sponte grants of summary judgment are only appropriate if the losing party has reasonable notice that the sufficiency of his or her claim will be in issue. Reasonable notice implies adequate time to develop the facts on which the litigant will depend to oppose summary judgment.

A district court that does not comply with the advance notice and response provisions of Rule 56(c) of the Federal Rules of Civil Procedure has no power to enter summary judgment. When the district court acted, Rule 56 required that summary judgment motions be served at least 10 days before the day set for the hearing, even when the court was acting sua sponte. Norse was only afforded two days' notice before the hearing.

This neither complied with the requirements of Rule 56, nor afford Norse adequate time to prepare for the hearing.

Because adequate notice was not given within the period specified by the rules, the district court was without power to enter summary judgment sua sponte. The district court's grant of summary judgment had to be reversed.

A mayor's entitlement to qualified immunity for ejecting a person from a city council meeting depends on whether a reasonable person in his position, acting on his information and motivated by his purpose, would have known that ejecting the attendee violated his clearly established rights.

The videos to which Norse objected showed triable issues of fact as to whether Norse was impermissibly ejected because of his viewpoint rather than his alleged disruptiveness. Applying its traditional summary judgment analysis, the court of appeals concluded there were genuine issues of material fact present on the video that precluded summary judgment.

City council meetings, once open to public participation, 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 speech — as long as content-based regulations are viewpoint neutral and enforced that way.

A city council may not, in effect, close an open meeting by declaring that the public has no First Amendment right whatsoever once the public comment period has closed.

Even though Norse's provocative gesture was made after the public comment period closed, Norse still had a First Amendment right to be free from viewpoint discrimination at that time.

Local legislators are absolutely immune from liability under § 1983 for their legislative acts. The question was whether the actions of the council members, when stripped of all considerations of intent and motive, were legislative rather than administrative or executive. It appeared that Norse was singled out for expulsion and arrest.

The decisions to expel Norse were administrative, not legislative, so the defendants were not entitled to absolute immunity.

Judge Alex Kozinski concurred, writing that even viewing the facts most favorably to the city council members, their behavior amounted to classic viewpoint discrimination for which they were not entitled to qualified immunity.

Reporting by Ronald Owens, Principal Attorney Editor, San Francisco.
by Robert Norse
Wednesday Jan 5th, 2011 7:08 PM
Nazi Salute at City Meeting Protected by First Amendment

http://blogs.findlaw.com/decided/2010/12/nazi-salute-at-city-meeting-protected-by-first-amendment.html

By Tanya Roth on December 22, 2010

Santa Cruz, California, is a laid-back, granola-friendly, surfer-centric kind of town. So the legal battle over a "disruption" of a city council meeting due to an act of free expression is all the more surprising.

Equally striking is the unanimous Ninth Circuit Court of Appeals decision that the Nazi salute is protected speech. Homeless advocate Robert Norse's salute was an expression of protected speech, not a disruption of the meeting and his suit against the council, mayor, police and city may proceed, the Court held.

Robert Norse has been an advocate for the poorest in Santa Cruz for decades and has constantly battled with city officials over the treatment of the homeless, reports The Los Angeles Times. During a city council meeting, in opposition to the mayor's treatment of another speaker at the meeting, Norse raised his hand in a silent Nazi salute. This action got Norse removed from the meeting for disruptive behavior and held by police with no charges for over five hours before he was released. Norse sued.

The case was dismissed by the trial court on the eve of trial, finding that as government representatives acting in their official capacity, the council members and mayor and arresting officers had immunity from lawsuits. The court of appeals found this dismissal did not allow Norse to argue his constitutional rights had been violated, an argument the appellate court found to be worthy of a hearing by the court.

In a concurring opinion, Chief Judge Alex Kozinski used descriptive words to describe why, in his opinion, Norse did not disrupt the meeting and the council members therefore trampled on his First Amendment rights by tossing him out.

Judge Kozinski wrote, "Norse raises his hand in a brief, silent protest of the mayor's treatment of another speaker. The mayor ignores Norse's fleeting gesture until Councilman [Tim] Fitzmaurice throws a hissy fit." Further, The Times reports that the judge wrote this description of how the First Amendment works in practice:

Councilman Fitzmaurice clearly wants Norse expelled because the "Nazi salute" is "against the dignity of this body and the decorum of this body" and not because of any disruption. But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech. (Citations omitted)

In a public forum, there will be opposing and even offensive opinions, but as long as there are no actual disruptions to the proceedings, the government will have to lump it -- at least according to the 9th Circuit. The Santa Cruz City Attorney, George J. Kovacevich, told The Times he was not sure whether or not the city would appeal to the Supreme Court or let the case go to trial.

All those in favor of a trial, raise your hands (quietly) and say "aye."
by Robert Norse
Wednesday Jan 5th, 2011 7:15 PM
For some (often abusive) debate on the decision go to http://www.topix.com/forum/city/santa-cruz-ca/TESTJD7GJTQ97DUH2#c21 . But--interestingly--less than usual.

For a fine photo of yours truly as well as a fun placard around my neck--some of which is legible--go to http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/12/15/BAIB1GR652.DTL

For the enlarged photo go to http://www.sfgate.com/cgi-bin/object/article?f=/c/a/2010/12/16/BAIB1GR652.DTL&object=%2Fc%2Fpictures%2F2010%2F12%2F16%2Fba-salute16_nors_0502708789.jpg.