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Motion for New Trial in Mock-Nazi Salute Case
The False Arrest civil trial of two former Santa Cruz Mayors, Tim Fitzmaurice and Christopher Krohn, ended in verdicts in their favor late last year in a federal courtroom in San Jose. My attorneys--David Beauvais and Kate Wells--have now moved for a new trial, claiming the jury verdict should be thrown out because it is against the overwhelming weight of the evidence and for other reasons. City attorney Kovocevitch disputes this in a shorter brief. The case will be heard Friday June 7th 9 PM in Federal Court. For those following the case , here is the transcript of last year's trial and the motions pro and con for a new trial.
To see the silent 2-second mock-Nazi salute for which I was falsely arrested and on which the City spent $150,000+, go to http://www.bing.com/videos/search?q=Robert+Norse+Nazi+salute&view=detail&mid=4F2A7A28CA0D15CA656B4F2A7A28CA0D15CA656B&first=0 . This happened way back in March 2002.
The verdict last November was a surprise to defendant and former Mayor Chris Krohn as well, who expected a decision in my favor given the evidence presented. Or that was what he told me as we drove back together (he gave me a ride back from San Jose).
The course of the trial can be followed by clicking on the links at http://www.indybay.org/newsitems/2012/11/05/18725161.php ("Closing Arguments, Jury Instructions, and Jury Deliberation in Mayors' Trial Begins Today").
The Sentinel's final story on the trial is at http://www.santacruzsentinel.com/localnews/ci_21948911/city-wins-free-speech-case-federal-jury-rules . Interesting are some of the comments following the story, from those who while disagreeing with me and/or my support of the homeless rights movement are rightfully upset at the City Council's abusive treatment of public dissent.
The most recent ratcheting up of the repression at City Council is chronicled at http://www.indybay.org/newsitems/2013/06/01/18737797.php ("Mayor Cuts Off Comment in Consent Agenda Crackdown; Brown Act Complaint Rejected").
Below is the voluminous transcript of the trial as well as the motions for retrial pro and con.
The Sentinel made brief mention of the upcoming hearing at http://www.santacruzsentinel.com/localnews/ci_23380861/coast-lines-june-4-2013-meeting-tackles-santa? .
My attorneys (who are doing this pro bono) are looking forward to this hearing, considering the city attorney's arguments very weak. I'm less optimistic about the outcome of this hearing. The judge hearing it, Robert Whyte, twice prevented a jury trial and sent the case creeping through the courts for ten years. More accurately it bounced back and forth, and looks like that may continue. If this motion for retrial fails, the attorneys say they are likely to appeal.
However an 11-member panel of the 9th Circuit Court of Appeals in an unusual en banc panel reaffirmed that arrests cannot be legitimately made for anything other than actual disruption--not the appearance of disruption, threatened disruption, virtual disruption, potential disruption, etc. That is exactly what happened here, and what is threatened frequently by mayors since.
I credit the attorneys' willingness to pursue the appeals against the mayors with creating a significant deterrent here. I suppose it's really hard to judge, but I think my willingness and that of others to ignore City Council's "thou shalt not criticize in gestures we don't like" policy has slowed the tide of repression. Though on it marches, for sure.
On rare occasions I've repeated the mock-Nazi salute (see http://www.indybay.org/newsitems/2011/11/09/18698345.php) without any repetition of the arrest or arrest threat. I had thought that City Council had removed some of the First Amendment-hostile language in its "decorum" rules, but the most recent iteration of those rules (at
http://www.cityofsantacruz.com/Modules/ShowDocument.aspx?documentid=29322 shows otherwise).
The rules still state " 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....Every member of the public and every Councilmember desiring to speak shall address the presiding officer... avoiding all indecorous language and references to personalities...Upon instructions of the presiding officer it shall be the duty of the sergeant-at-arms or any police officer present to eject from the Council Chambers any person in the audience who uses boisterous or profane language, or language tending to bring the Council or any Councilmember into contempt..."
On the other hand, the mere making of "personal, impertinent, slanderous, boisterous, indecorous, profane, or contemptuous" language is no cause for ejection unless an actual disruption is caused. This was significantly upheld when the case was forwarded to trial by the en banc panel of the 9th Circuit. And it is also the fundamental basis for appealing the jury verdict last year and demanding a new trial.
On the ground, this means--express yourself, don't be intimidated, and support the First Amendment in City Council chambers, whether it be for strong speakers on the left or the right.
Some folks don't know their p's from their a's. Sorry about that.