Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT B ENITO A COSTA , No. 10-56854 Plaintiff-Appellant , D.C. No.
v. 8:06-cv-00233- DOC-MLG C ITY OF C OSTA M ESA ; A LLAN M ANSOOR , Mayor of the City of Costa Mesa, in his official and OPINION individual capacities,
Defendants-Appellees , J OHN H ENSLEY , Chief of Police, Costa Mesa Police Department; D AVID A NDERSEN ; D AVID D E H UFF ; J OHN D OEZIE ; B RYAN G LASS ; D ANIEL G UTH ; D AVID M AKIYAMA ; J EFF T OBIN ; D EREK T RUSK ; in their official and individual capacities,
Defendants . 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 May 3, 2013 Before: Richard C. Tallman and N. Randy Smith, Circuit
Judges, and Dee V. Benson, District Judge. [*] Per Curiam Opinion
SUMMARY [**]
Civil Rights
The panel reversed in part and affirmed in part the district court’s judgment entered following a jury verdict in this action challenging Costa Mesa Municipal Code § 2-61, which makes it a misdemeanor for members of the public who speak at City Council meetings to engage in “disorderly, insolent, or disruptive behavior.”
Reversing the district court, the panel held that the statute was facially invalid because it failed to limit proscribed activity to only actual disturbances. Rather, the statute unnecessarily swept a substantial amount of non-disruptive, protected speech within its prohibiting language. The panel further determined that because neither the term “insolent” in subsection (a), nor the terms “personal, impertinent, profane, insolent” in subsection (b)(1) could be severed from § 2-61, the entire section needed to be invalidated.
[*] The Honorable Dee V. Benson, District Judge for the U.S. District Court for the District of Utah, sitting by designation.
[**] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. The panel nevertheless held that § 2-61 was constitutionally applied to plaintiff because the jury implicitly found that his behavior actually disrupted the Council meeting. The panel further found that officers did not employ excessive force when enacting plaintiff’s seizure and arrest and used only the force reasonably necessary to remove plaintiff from the meeting. The panel also held that plaintiff failed to show prejudice by the admission of his prior statement into evidence and that the district court did not err by rejecting plaintiff’s proposed jury instruction.
COUNSEL
Belinda E. Helzer (argued), ACLU Foundation of Southern California, Orange, California; Hector O. Villagra and Peter J. Eliasberg, ACLU Foundation of Southern California, Los *3 Angeles, California, for Plaintiff-Appellant.
M. Lois Boback (argued) and Daniel K. Spradlin, Woodruff, Spradlin & Smart, APC, Costa Mesa, California, for Defendants-Appellees.
OPINION
PER CURIAM:
Costa Mesa Municipal Code § 2-61 makes it a misdemeanor 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 judgment 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 evidence, 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 contrary to the Mayor’s.
Because § 2-61 fails to limit proscribed activity to only actual disturbances, we reverse the district court’s constitutionality ruling and find the statute facially invalid. Moreover, since the unconstitutional portions of the ordinance cannot be severed from the remainder of the section, we invalidate the entire section. Nevertheless, § 2-61 was constitutionally applied to Acosta, because the jury implicitly found that his behavior actually disrupted the Council meeting. Accordingly, we affirm the remainder of the district court’s determinations.
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 *4 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 officers.
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 Mun. 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 misdemeanor. Meetings are recorded by video cameras and the relevant recordings are part of the record on appeal. [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 Hensley directed Acosta’s removal when he failed to cease his disruptive activities as requested by the Mayor. “The Ralph M. Brown Act, [California Government Code § 54950 et
seq.
], is designed to encourage public participation in government.”
Coal.
of Labor, Agric. & Bus. v. City of Santa Barbara Bd. of Supervisors
,
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 opposition to the proposal. When Acosta’s time came to speak, the video recordings show that he was visibly emotional and agitated. [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.
Acosta submitted a DVD that shows Acosta’s remarks at the December 6, 2005, meeting. Three DVDs of the January 3, 2006, meeting were introduced 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. Appellees 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.
After receiving local and national media attention, the City Council again placed the ICE agreement on the agenda of the next regular Council meeting on January 3, 2006. Prior to that meeting, groups supporting and opposing the agreement demonstrated outside City Hall. Council Chambers was filled to overflow capacity and additional demonstrators remained outside. During the public comment portion of the meeting a total of twenty-five speakers *6 addressed the City Council, fifteen 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 audience 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 representative; 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 Costa Mesa Municipal Code § 2-63 authorizes inquiry into speaker representation: “In order to expedite matters and to avoid repetitious presentations, 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.” 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 facing 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 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 *7 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 officers 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, however, they encountered a large crowd and Acosta increased his efforts to resist the officers. When the officers attempted to 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 moving 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 Amendment 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 California Constitution that sought A COSTA V . C ITY OF C OSTA M ESA damages. At the district court and here, the core of Acosta’s argument is that § 2-61 unconstitutionally 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 district court dismissed without prejudice Acosta’s facial challenges 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 disrupted 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 monetary damages and granted the City public entity immunity for Acosta’s as-applied challenges under the California Constitution 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 challenge 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.
*9 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 these claims. [5] 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
Acosta first argues that the district court erred when it
dismissed his claim that § 2-61 is facially invalid. We review
the district court’s dismissal of a claim de novo.
Kennedy v.
S. Cal. Edison Co.
,
We can determine that the jury made this finding by analyzing the jury
instructions.
See Weeks v. Angelone
,
On appeal, Acosta argues that § 2-61 is facially invalid, because it is overbroad. Section 2-61 states:
Propriety of conduct while addressing the council.
(a) The presiding officer at a meeting may in his or her discretion bar from further audience before the council, or have removed from the council chambers, any person who commits disorderly, insolent, or disruptive behavior , including but not *10 limited to, the actions set forth in (b) below.
(b) It shall be unlawful for any person while addressing the council 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.
Costa Mesa, Cal., Mun. Code § 2-61 (2012) (emphasis
added). We will invalidate this section as “overbroad,”
violating the First Amendment, if “a substantial amount of its
applications are unconstitutional, judged in relation to [its]
plainly legitimate sweep.”
United States v. Stevens
, 130
S. Ct. 1577, 1587 (2010) (internal quotation marks omitted).
Although “[t]he concept of ‘substantial overbreadth’ is not
readily reduced to an exact definition,” it generally means
that we will not invalidate a statute on its face unless “there
[is] a realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of
parties not before the Court.”
City Council v. Taxpayers for
*11
Vincent
,
With that foundation, “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.”
Stevens
,
Applying these principles, we conclude that Costa Mesa Municipal Ordinance § 2-61 is overbroad on its face, and that no reasonable construction can eliminate its overbreadth. Further, the overbroad terms in § 2-61 are not severable under California law. Therefore, we must invalidate § 2-61 as presently written in its entirety.
A COSTA V . C ITY OF C OSTA M ESA
A
First, we must determine if we can construe § 2-61 such
that it will not reach a “substantial amount of constitutionally
protected conduct.”
City of Houston v. Hill
,
The City suggests three possible constructions of the
ordinance to solve the constitutional defect. First, subsection
(a) should be read as a limit on subsection (b) and subsection
(a) should be read to require that speech cause an actual
disruption before the presiding officer may stop it. Second,
subsection (b) should be read as a list of “examples of the
types of
actions
, as opposed to mere words, that might
constitute disruptive behavior” in subsection (a).
[6]
Third,
The ordinance may reach protected speech, even though it uses the
words “action” or “behavior.” The Supreme Court has frequently rejected
attempts to regulate speech under the guise of regulating conduct.
See
Cohen v. California
,
Because the City’s first and second potential constructions are not reasonable ways to read the statute, we cannot adopt them. Both depend on a relationship between subsection (a) and subsection (b) that the text of the ordinance does not support. Specifically, the City suggests that we read subsection (b) in connection with, and as limited by, subsection (a). However, no language in subsection (a) indicates that it limits subsection (b) in all cases, whenever subsection (b) is violated. On the contrary, by declaring the listed speech and behavior “unlawful,” the City gave subsection (b) a legal effect independent of subsection (a). Even though subsections (a) and (b) are part of the same statutory section, we refuse to forge a connection between them that goes beyond what the text of the ordinance permits.
The text of § 2-61 is different from the ordinance at issue
in
White v. City of Norwalk
,
Like the ordinance in White , § 2-61 prohibits the making of “personal, impertinent, profane, insolent or slanderous remarks.” That, without limitation, is an unconstitutional prohibition on speech. However, unlike the ordinance in White , § 2-61 is not “readily susceptible” to a narrowing construction that would render it constitutional. No textual link ties subsection (a) to subsection (b) like the second sentence of the ordinance in White was tied to the first.
In addition to being grammatically independent, subsections (a) and (b) appear to have distinct purposes. Subsection (a) authorizes a meeting’s presiding officer to deal with a person who engages in certain types of conduct when addressing the City Council. Subsection (b) prohibits persons who are addressing the City Council from engaging in certain types of conduct. Subsections (a) and (b) are related, because (b) provides the presiding officer with a non-exclusive list of grounds for exercising the authority that subsection (a) confers on him or her; the text does not support reading these two sections together any other way. Thus, subsections (a) and (b) can only fairly be read together when two predicates are satisfied: (1) a person addressing the City Council engages in conduct that subsection (b) prohibits, and (2) the presiding officer takes adverse action against that person based on that conduct.
Other provisions of the Costa Mesa Municipal Code give subsection (b) independent effect in circumstances where subsection (a) might not operate (e.g., a person engages in conduct that subsection (b) prohibits, but the presiding officer does not exercise his power under subsection (a)). For example, § 2-66 authorizes the sergeant-at-arms (who, at the January 3 meeting, was Chief Hensley) to “arrest any person violating the provisions” of Chapter III of the Code. Costa *15 Mesa, Cal., Mun. Code § 2-66. Additionally, § 1-34(a) authorizes civil fines to be imposed for “any violation of the provisions of [the] Code.” Costa Mesa, Cal., Mun. Code § 1- 34(a). These sections give § 2-61(b) independent legal significance, because engaging in the enumerated “unlawful” behaviors would subject the violator to arrest, a civil fine, or both. [7] Nothing in the language of § 2-61 indicates that subsection (a) limits the circumstances in which subsection (b) triggers these sanctions.
Moreover, § 2-60 clarifies that the drafters of the Code use the formulation “it shall be unlawful” to have independent legal significance. The text of that section is as follows:
Propriety of conduct of council members. (a) Members of the council shall preserve order and decorum during a meeting.
(b) It shall be unlawful for any member of the council to violate any of the following rules:
(1) 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.
(2) Members of the council shall obey and
carry out the lawful orders or
directives of the presiding officer.
This feature of the ordinance further distinguishes it from the ordinance
at issue in
City of Norwalk
, which authorized police officers to “remove”
someone from a city council meeting only upon an “order” from the
presiding officer.
20 A COSTA V . C ITY OF C OSTA M ESA Costa Mesa, Cal., Mun. Code § 2-60. Like subsection (b) of § 2-61, subsection (b) of § 2-60 prohibits specific types of conduct by declaring them to be “unlawful.” However, § 2- 60 does not contain a provision that authorizes a city official to deal with a person engaged in the prohibited conduct, like subsection (a) in § 2-61. Presumably, enforcement power must be provided by some other part of the Code (such as § 2-66 or § 1-34(a)) if these prohibitions are to have any coercive effect. Therefore, the drafters of the Code employ the formulation “it shall be unlawful” to trigger the sanctions available for “violations” of the code whenever a person engaged in the “unlawful” conduct.
Thus, it would be reasonable to assume that the drafters intended § 2-61(b) to have the same effect as § 2-60(b) when they used the same “it shall be unlawful” formulation there. Namely, a violation of subsection (b) will trigger potential sanctions under § 2-66 and § 1-34 in addition to those sanctions available under § 2-61(a). Therefore, subsection (b) has legal significance independent of subsection (a). There is no textual basis for reading subsection (b) together with subsection (a) in such applications. As such, a person may be fined or arrested for violating subsection (b)(1), regardless of whether his “personal, impertinent, profane, or slanderous remarks” are actually “disruptive.” Although we must adopt a constitutional construction of § 2-61 if such a reading is fairly possible, the City’s first two suggested constructions do not meet that standard.
Even if subsection (a) provided a blanket limitation like
the City suggests, that would not be enough to validate the
statute. The items in the series of narrowing qualifiers in
subsection (a) (“disorderly,
insolent
, or disruptive behavior”)
are different from the series of narrowing qualifiers in
White
,
Here, subsection (a) imposes no such limitation. Only the words “disorderly” and “disruptive” are qualifiers that refer to actual disruption of the city proceedings. The third qualifier merely prohibits “insolent” behavior. The Costa Mesa Municipal Code does not define the term “insolent.” “When terms are not defined within a statute, they are accorded their plain and ordinary meaning, which can be deduced through reference sources such as general usage dictionaries.” UMG Recordings, Inc. v. Shelter Capital Partners LLC , 667 F.3d 1022, 1041 (9th Cir. 2011). Webster’s Third defines “insolent” as “ haughty and contemptuous or brutal in behavior or language” or “lacking usual or proper respect for rank or position.” Webster’s Third New International Dictionary 1170 (emphasis added). This type of expressive activity could, and often likely would, fall well below the level of behavior that actually disturbs or impedes a City Council proceeding.
Furthermore, we cannot read the words “disruptive” or
“disorderly,” which surround the term “insolent,” as a
modification of that term. California courts follow the
common rule of statutory construction that gives disjunctive
and distinct meaning to items separated by the word “or.”
In
re Jesusa V.
,
Therefore, even if subsection (a) does limit subsection (b), it does not limit it in a way that alleviates any constitutional infirmity in subsection (b)(1). Any activity discussed under subsection (b) that is also merely “insolent” under subsection (a) is prohibited under the plain terms of the City’s ordinance. For instance, a “remark[]” that is “personal,” “impertinent,” “profane,” or “insolent” under subsection (b)(1), could be “insolent . . behavior” under subsection (a), justifying removal of the speaker. Accordingly, a comment amounting to nothing more than bold criticism of City Council members would fall in this category, whereas complimentary comments would be allowed. Nothing guarantees that such *18 a comment would rise to the level of actual disruption. Thus, the ordinance allows the City to prohibit non-disruptive speech that is subjectively “impertinent, “insolent,” or essentially offensive, even when subsection (a) is read as limiting subsection (b)(1).
Furthermore, because subsection (a) authorizes the presiding officer at a meeting to “bar from further audience before the council, or have removed from the council chambers, any person who commits . . . insolent . . . behavior,” subsection (a) itself is constitutionally infirm. The unqualified term “insolent” in subsection (a) opens the door to discrimination based on viewpoint, just like the term “insolent” in subsection (b)(1). 23
“If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.”
Texas v. Johnson
, 491 U.S.
397, 414 (1989) (collecting cases);
see also R.A.V. v. St. Paul
,
We also reject the City’s third proposed construction, because it too depends on reading the statute in a way that the text does not permit. The City argues that subsection (b)(6) can be read as a limit on the entire statute. However, by its terms, subsection (b)(6) is only one of many examples under subsection (a) of how someone who is addressing the City council might act in a “disorderly, insolent, or disruptive” manner. Nothing textually about subsection (b)(6) limits anything in the rest of § 2-61. Additionally, it is difficult to square the City’s argument that subsection (b)(6) limits all of § 2-61, with its argument that § 2-61(a) does the same thing.
We conclude that § 2-61 is overbroad, because it
unnecessarily sweeps a substantial amount of non-disruptive,
protected speech within its prohibiting language.
See Vlasak
v. Super. Ct. of Cal. ex rel. Cnty. of L.A.
,
We note that this statute appears to be like the one that the
Supreme Court invalidated in
Hill
,
B
Although § 2-61 is unconstitutional as written, we can avoid invalidating the entire section if we can sever the unconstitutional elements from the ordinance. To do so, we must analyze both (1) whether we can sever the term “insolent” from subsection (a), and (2) whether we can sever the terms “personal, impertinent, profane, insolent” from subsection (b)(1). [9] The City of Costa Mesa has declared that an unconstitutional “phrase, clause, sentence, paragraph [or] section” of the Code should be severed in order to uphold the constitutional parts of the Code. See Costa Mesa, Cal., Mun. [9] It is unnecessary to determine whether all of subsection (b)(1) is invalid, because its prohibition on slander, which is unprotected by the First Amendment, see Ashcroft v. Free Speech Coal. , 535 U.S. 234, 245–46 (2002), does not raise any constitutional concerns. Additionally, though subsection (b)(6) also contains the term “insolent,” it does not prohibit such speech unless it “substantially delay[s], interrupt[s], or disturb[s] the proceedings of the council.” Costa Mesa, Cal., Mun. Code § 2-61(b)(6). Arguably, this satisfies Norse ’s actual disturbance requirement and—because Acosta does not address it—we will not analyze it further.
Code § 1-32. Despite this authorization, the ordinance is only
constitutional if the text to be severed is volitionally,
grammatically, and functionally severable.
McMahan v. City
& Cnty. of San Francisco
,
At oral argument, the City made an offhand remark that it favored
severance over complete invalidation. It neither briefed this argument, nor
raised it below. Regardless, it does not effect our view of volitional
severability. California courts look to what the intentions were of the
enacting body
at the time of enactment
to determine whether volitional
severability is met.
See Gerken v. Fair Political Practices Comm’n
,
The “intended function of [the] particular statutory
scheme” as a whole supports our conclusion that § 2-61 fails
the volitional severability prong.
Barlow v. Davis
, 85 Cal.
Rptr. 2d 752, 758 (Ct. App. 1999);
Briseno v. City of Santa
Ana
,
Metromedia, Inc. v. City of San Diego
,
A COSTA V . C ITY OF C OSTA M ESA
may be changed in meaning in order to give it
some
operation
, when admittedly it cannot operate as the
Legislature intended.”
Metromedia
, 649 P.2d at 908 n.10
(emphasis added) (quoting
People v. Perry
,
Based on the foregoing, we are not “confident” that the
City would have enacted § 2-61 without the parts we have
determined to be unconstitutional.
Cf. McMahan
, 26 Cal.
Rptr. 3d at 516 (finding provisions of law volitionally
severable when court “confident that the provisions [to be
retained after severance] would have received the
endorsement of the vast majority of voters, even [without the
unconstitutional part]”). Therefore, the volitional severability
prong is not satisfied. As a result, neither the term “insolent”
in subsection (a), nor the terms “personal, impertinent,
profane, insolent” in subsection (b)(1) can be severed from
§ 2-61.
McMahan
,
construction, we must invalidate the entire section on this basis alone. We nonetheless analyze the remaining two prongs, grammatical and functional severability.
Text is grammatically (or “mechanically”) severable only
when it constitutes a “physically separate section[] of the
proposition.”
Santa Barbara Sch. Dist. v. Superior Court
,
First we address whether the word “insolent” is
grammatically severable from subsection (a) of § 2-61. No
California cases hold that one word and the two commas
surrounding it are grammatically severable from statutory
text. By contrast, at least two California cases dealing with
a similar issue refused to sever one unconstitutional word
from a sentence.
See Cnty. of Sonoma
,
Next we analyze whether a grouping of individual words,
“personal, impertinent, profane, insolent” is severable from
the surrounding text in subsection (b). For the same reasons
just discussed with respect to severing the term “insolent”
from subsection (a), we conclude that these words are not
grammatically severable from subsection (b). Although this
grouping contains more than one word, the same concerns
with severing a single word from a sentence apply to severing
a group of individual words from a sentence. Unlike a clause
or phrase, the grouping of individual words does not form a
complete grammatical unit expressing one legislative thought.
Were we to excise single words (or groups of individual
words), we would be “rewrit[ing] [the ordinance] in order to
save it.”
United States v. Buckland
,
The terms of Costa Mesa’s severability clause, while not determinative, support our conclusion that the individual words at issue are not grammatically severable from their surrounding text. 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.” Barlow , 85 Cal. Rptr. 2d. at 757 (internal quotation marks omitted). Here, the City’s severability clause only states that “sections, paragraphs, clauses and phrases of this Code are severable,” rather than individual words. Costa Mesa, Cal., Mun. Code § 1-32. Therefore, the severability clause indicates that the City did not intend something less than a phrase to be grammatically severable.
Finally, the unconstitutional words must also be
functionally severable if we are to only excise the invalid
terms while upholding the remainder of the ordinance. Text
is functionally severable if it is not necessary to the
*26
ordinance’s operation and purpose.
City of Long Beach
,
The testimony of the Chief of Police in this case demonstrates that the term “insolent” was not unnecessary to the operation of § 2-61. The Chief testified at trial that city officials relied on the word “insolent” as a key part of effectuating § 2-61’s purpose of prohibiting protected speech. When asked whether § 2-61 “allowed [the police] to arrest the persons insolent ,” he answered, “Yes.” The Chief also answered affirmatively when asked whether § 2-61 “was enforced in Costa Mesa” such that it “would be [a] violation[] of the municipal code” to make “insulting remarks.”
The Chief of Police’s testimony here parallels that of a
city official in
City of Long Beach
. In that case, the official
charged with enforcing the ordinance testified that the
ordinance could be enforced in an unconstitutional way.
City
of Long Beach
,
34
A COSTA V . C ITY OF C OSTA M ESA
If a statute does not meet any one criteria (grammatical,
functional,
or
volitional severability), then a court may not
sever text from a statute.
McMahan
,
III
We turn next to Acosta’s claim that the district court improperly granted summary judgment on his as-applied challenge 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
challenges. Facial and as-applied challenges can be viewed
as two separate inquiries.
See Bd. of Trs. of State Univ. of
*28
New York v. Fox
,
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 City of Houston, Tex. v. Hill
,
B
We review de novo the district court’s decision to grant summary judgment. Davis v. City 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 substantive 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- applied state constitutional claim on grounds of public entity immunity, but Acosta does not challenge the grant of discretionary act immunity to the Mayor and the Chief of Police pursuant to California Government Code § 820.2.
California Government Code § 815 provides: *29 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 person.
(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 statute, 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
,
Under California’s Tort Claims Act “public entities are
immune where their employees are immune, except as
otherwise provided by statute.”
Caldwell v. Montoya
,
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
,
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 qualifies 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.
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
,
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
,
A COSTA V . C ITY OF C OSTA M ESA
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 exercise of authority.
See Grossman v.
City of Portland
,
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 1202–03. 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 unconstitutional as to require a reasonable officer not to enforce it. Id.
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 arguments 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 constitutional 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
“Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory
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 entitled
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 officer’s
conduct violated a constitutional right?”
Saucier v. Katz
,
533 U.S. 194, 201 (2001). Under the second prong we
examine whether the right was clearly established.
Id.
To be
“clearly established, the contours of the right must be
sufficiently 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 statutory or constitutional question beyond
debate.”
Ashcroft v. al-Kidd
,
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. Resolution of both contentions turns on whether probable cause existed to seize Acosta.
Assuming Acosta’s contention accurately reflects why he
was arrested, Acosta’s claim still fails under prong two of
Saucier
In
Reichle
, the Supreme Court held that it had
never recognized, nor was there a clearly established First
Amendment 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 probable cause could give rise to a First
Amendment violation.”). Furthermore, at the time of the
Council meeting, our precedent had previously upheld
restrictions on speech at city council meetings where the
speech was actually disruptive and this remains the law.
See
City of Norwalk
,
All seizures, except a narrowly defined intrusion such as
the one in
Terry v. Ohio
,
only if the seizure is supported by probable cause.
Dunaway
v. New York
, 442 U.S. 200, 214 (1979). To determine
whether there was probable cause, we look to “the totality of
circumstances 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
,
Violations of §§ 2-61 and 2-64 are misdemeanors and a person in violation of either ordinance can be arrested. Section 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 audience to stand. Then the Mayor called for a recess to end his disruptive behavior. Acosta remained at the podium and continued to speak after the Mayor called the recess.
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 officers on this
claim.
[14]
Thus, even assuming that Acosta was arrested in
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
,
A COSTA V . C ITY OF C OSTA M ESA retaliation for his remarks, because probable cause existed for a violation of § 2-61, the officers are still entitled to qualified immunity, not only for the removal of Acosta from the chambers, but also for his subsequent arrest. Summary judgment was properly granted in favor of the officers. The remaining question we must answer is whether the officers employed excessive force when enacting the seizure and arrest.
C
When effecting an arrest, the Fourth Amendment requires
that officers use only such force as is “objectively
reasonable” under the circumstances.
Jackson v. City of
Bremerton
,
We find that there was no excessive force here as a matter of law. The undisputed evidence shows that the officers used only the force reasonably necessary to remove Acosta from 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. 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 *35 when first asked to step down and the crowd began yelling both in support and opposition to Acosta. He also concedes that he did not leave the podium immediately. Considering the volatility of the situation and the presence of a large crowd of hostile demonstrators, the amount of force the officers 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 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 reasonableness 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 statement “absolutely an act in conformity” and “highly relevant” to the January 3, 2006, meeting.
A
We accord the district court “wide discretion in
determining the admissibility of evidence under the Federal
Rules.”
United States v. Abel
, 469 U.S. 45, 54 (1984).
*36
“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 prejudicial.
See Harper v. City of Los
Angeles
,
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 [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 determination that § 2-61 is facially overbroad does not require reversal of the district court on any of these issues.
error. [16] Three videos depicting exactly how Acosta acted at the January 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.
B
We also review the district court’s rejection of a proposed
jury instruction for an abuse of discretion.
See Jones v.
Williams
, 297 F.3d 930, 934–35 (9th Cir. 2002);
Duran
,
civil case does not require reversal if it is harmless.
See
Altera Corp. v. Clear Logic, Inc
.,
Acosta argues the court erred by rejecting Acosta’s instruction 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 harmless because, as we have already noted, the district court provided 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 instructions refer to conduct, the reference was to Acosta’s conduct at the January 3, 2006, meeting.
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.
A COSTA V . C ITY OF C OSTA M ESA
He 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
,
Here, the jury returned a verdict in favor of the defendants. The evidence presented at trial is easily interpreted to support a reasonable jury’s determination that the Mayor neutrally 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 properly instructed jury could certainly have found that the meeting was actually disrupted by Acosta addressing the audience 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.
*39
Foley Estates Vineyard & Winery, LLC
,
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
,
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 activity’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 ordinances in an unconstitutional manner. We affirm the district court’s denial of equitable relief.
VIII
Section 2-61 is facially overbroad and therefore invalid, and the offensive words cannot be excised from the ordinance. 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
parties will bear their own costs on appeal.