In a decision by the U.S. Ninth Circuit Court of Appeals, a Santa Cruz city council gadfly has won another chance to that show his fleeting, wordless Nazi salute was not disruptive to a council meeting, and that his ouster therefore violated his First Amendment rights.
As reported by Tim Hull for Courthouse News Service,
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."