Norse v. City of Santa Cruz
586 F.3d 697
9th Cir.
2009
Check Treatment
Docket

*4 TASHIMA, Circuit Judge, concurring in disruptive conduct.” City See Norse v. part and dissenting part: Cruz, Fed.Appx. Cir.2004) (“Norse ”).2

In a proceeding akin to That summary judg- limitation on ment, on the date set for the eommence- what conduct the proscribe Council rules is that, agree 1. majority I also with the whether Presiding out the direct orders of the (i.e., probable Mayor) ejecting Officer or not there cause for Norse Norse's from the meeting, arrest at the police officer (who Sergeant as at Arms for the narrowing necessary This construction was meeting), reasonably cariy- Council acted authorized, because the Council rules inter justification no for the Yet, sup- there was the record law of the case. meeting for eject Norse from the the inference ports contrary, being disruptive. On the excluded Council clearly supports the inference that meeting because record from the 2002 ejected from the 2002 expressed Norse was with the views disagreed disagreed and Council his silent Nazi salute.3 giving disliked) intensely overtly with that Norse’s Nazi It uncontroverted of the district viewpoint. and, in or two only a second salute lasted ruling quoted by majority ad- court’s salute, rendering the course First, mits as much. the district court or other sound—he uttered no word “suddenly noted that the faced undisputed also silent. interrupted that had been silent, speech, visual such permits Council by an council member.”4 offended meetings, at its displaying signs added). It then notes op. (emphasis at 698 such does not block long so hostility viewpoint. to Norse’s Council’s other interfere with view of otherwise knew that two Mayor] also “[The *5 Thus, com- the salute meeting attendees. previous members in the months had ex- permitting rule ported with the Council’s their abhorrence of his pressed to Norse silent, messages at the Council non-verbal Further, gestures....” Nazi Id. as not, itself, disrup- That it was noted, court also when Norse made district tive, fact by the is evidenced gesture past his Nazi salute of it—he con- Mayor was not even aware meetings, he was warned that Council of announce- reading tinued with gesture to be offensive members found member Fitzmaurice ments—until Council and that he would be removed from the And, attention to it. as called his in such conduct demonstrates, au- no member of the video Thus, again. ample there is evidence to Norse’s silent salute. dience reacted support finding the record to a Drawing all inferences viewpoint— because of his was removed must, favor, we submit as being members detested because Council that, as a way is no to conclude there Nazi-like. characterized law, Norse’s conduct render- matter of dis- fleeting, silent Nazi salute was ing majority attempts to elide the ruptive. says the issue. by sidetracking support “in of the dis- fact, majority Norse’s action was reading close just that had occurred....” that it does not hold opinion shows acting “in was, itself, That the disruptive. op. Norse’s conduct Thus, alia, commence. the evi- any person uses and was about to the “removal ... of who 'language tending bring the council or which the district court’s and the dence on contempt...” council member into majority's ruling were based is uncontrovert- I, (quoting Fed.Appx. at the Council 178 untested). What controvert- ed remains rules). ed, inferences are the reasonable draw from this evi- that a fact finder can qualified immunity rul- district court’s 3. The dence. viewing ing primarily on was based also viewed. No witnesses which disruption, subject "interruption,” called to cross-examination. that the or 4. Note purported caused, make no find- court district but the council fact, something ings it was not authorized member. been demanded to do because a trial had faith” to “enforce the Council the limited fora good municipal meet- That Norse’s Nazi salute decades-old, rules....” ings is in accord with clearly- reasonably have [been] “could Supreme established Court case law that as intended to and to further [] speech in “prohibited’ such fora cannot be occurring “merely officials disapprove ” ” the room.” Id. at 700. But Norse’s speech speaker’s view.’ U.S. Postal Serv. suppressed cannot be because of the ac- Ass’ns, v. Council Greenburgh Civic tions of others. See Tinker v. Des Moines 114, 132, U.S. 101 S.Ct. 69 L.Ed.2d Dish, 503, 508, Indep. Cmty. Sch. 393 U.S. (1981) (quoting Consol. Edison Co. v. (1969) (hold- 733, 21 89 S.Ct. L.Ed.2d 731 Comm’n, 530, 536, Pub. Serv. 447 U.S. by high that black armbands worn (1980) 2326, 65 S.Ct. L.Ed.2d 319 (quoting school students in of the Vietnam Maryland, 268, 282, Niemotko v. 340 U.S. disruptive, war were not and that (1951) (Frank- 71 S.Ct. 95 L.Ed. 280 suppressed could not be on account of the furter, J., result))); concurring in see also might fact that the armbands cause others Perry Perry Educ. Ass’n v. Local Edu- in disruptive ways). to react Nor Ass’n, 37, 46, cators’ 460 U.S. 103 S.Ct. relevant, long Norse’s intent so as his (1983) 74 L.Ed.2d (noting rules, speech comports with the Council’s may regulate speech State at a limited sum, as it did. In the district court erred public forum “as long regulation in holding as a matter of law that speech is reasonable and not an effort to Mayor and Council’s action in ejecting suppress expression merely because offi- Norse from the for render- view”). oppose speaker’s cials *6 ing silent Nazi salute did not violate his this First Amendment principle that First Amendment It could do so Council violated only by drawing all against inferences majority ignores) has been the law of the majority as the does. for century. land over a half Alternatively, the majority further holds earlier, IAs noted the district court’s if, that “even in retrospect, we were to procedure in granting judgment to defen- hold that Norse’s First rights qualified immunity dants on was akin to a violated, it would not have been clear summary judgment proceeding.5 That be- to a person reasonable in Mayor case, ing the required we are to draw position Council’s that was every reasonable inference in favor of the Maj. unlawful----” op. at 699. This hold- opposing party, here Norse. But the ma- just also plain wrong. is Our case law jority exactly First, does opposite. clearly had by established twelve majority “agree[s] with the district court years before the 2002 Council meeting, that the was not on account of speech that at a municipal meeting could permissible expression suppressed not be of view.” actually unless it was op. at 699. But disruptive. rejects this view 900 F.2d at 1424. That this reasonable was the law of the circuit inference that the years later, confirmed five to enforce the Council’s stated “ab- Kindt, 67 at 270. Just important- horrence of gesture.” [Norse’s] Nazi ly, our First Amendment jurisprudence majority agrees also with 5. specified The district court pro- ty acknowledge never what the district court’s unusual following, only cedure it was procedure, it was legal nor indicate what standard holding ‘'hearing” applied to procedure, resolve the issue of to that what nor standard qualified immunity. majori- Neither does the applying. of review it is silently right his sa- ment the Council’s “that Norse intended court’s view May- Id. at 699. Nazi because the disruptive.” action lute ... to be against This, too, previously an inference drawn or and Council carried out their majority infers would again, And voiced threat —-that Norse be re- Norse. member who called the meeting Council moved from the he “[t]he attention could rea- rendering again. his Nazi salute salute to What’s more, it as intended to sonably clearly this law has been established disruption that nothing ambiguous to further the for decades. There is support and in the occurring[by “iffy” aspect others] or about this of First had Amend- why, stage, But Id. at 700. this ment law. No reasonable local offi- public room.” against be drawn lawfully such an inference cial could believe that he could should of controvert- All these are issues remove a member of the from a Norse? fact which should have been submitted per- ed found trier of fact. speech per- son’s silent to be abhorrent or —the sonally offensive. this, majority concludes From all to a “it would not have been clear respectfully dissent from that and Coun- person reasonable majority opinion which grants was unlaw- position cil’s im- and Council members ful, circumstances and given the difficult munity liability from on Norse’s First presented of disorder that was threat being ejected Amendment claim for from I have disruptions.” the 2002 Council Because the of the 2002 viewed the same video law was established and the evi- majority on which the bases its May- supports dence the inference conclusion, cir- and to conclude that suppress and Council members acted to “difficult” and that there cumstances were found to be abhorrent and disorder,” majority a “threat of offensive, it though even does, hyperbolic, say the least. Most tive, it grant qualified was error to immu- conclude, would after persons *7 nity to defendants as matter of law. viewing the same this grant would reverse the immu- “disorderly” no more “difficult” or nity as to the 2002 and remand meet- any than other small-town Council this claim for trial. event, ing. question this too is a But, majority’s “findings” fact. even if the value, threat of dis-

are taken at face excuse the deni- others does not

al of established First Supreme As the us, “in system, has our

Court reminded apprehension

undifferentiated fear or enough

disturbance is not overcome COHEN, Petitioner, Tinker, In re Roberto expression.” right to freedom 89 S.Ct. 733. U.S. are drawn If the reasonable inferences should have done UNITED STATES DISTRICT COURT favor of the NORTHERN DISTRICT summary-judgment-like proceeding, this FOR CALIFORNIA, Respondent, deprived of his First Amend- OF Norse was