Robert NORSE, Plaintiff-Appellant, v. CITY OF SANTA CRUZ; Christopher Krohn, individually and in his official capacity as Mayor of the City of Santa Cruz; Tim Fitzmaurice; Keith A. Sugar; Emily Reilly; Ed Porter; Scott Kennedy; Mark Primack, individually and in their official capacities as Members of the Santa Cruz City Council; Loran Baker, individually and in his official capacity as Sergeant of the Santa Cruz Police Department; Steven Clark, Defendants-Appellees.
No. 07-15814
United States Court of Appeals, Ninth Circuit
December 15, 2010
629 F.3d 966
Argued and Submitted June 22, 2010.
George J. Kavacevich, Atchison, Barisone & Condotti, Santa Cruz, CA, for defendants-appellees City of Santa Cruz et al.
Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, PAMELA ANN RYMER, SIDNEY R. THOMAS, M. MARGARET MCKEOWN, WILLIAM A. FLETCHER, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD C. TALLMAN, RICHARD R. CLIFTON and CARLOS T. BEA, Circuit Judges.
Opinion by Judge THOMAS; Concurrence by Chief Judge KOZINSKI.
OPINION
THOMAS, Circuit Judge:
When Robert Norse gave the Santa Cruz City Council a silent Nazi salute, he was ejected and arrested. He sued city
I
On March 12, 2002, Robert Norse was ejected from a Santa Cruz City Council (“City Council“) meeting and arrested after an incident in which he gave the Council a silent Nazi salute. Two weeks later, he filed a complaint in the District Court of Northern California, challenging the constitutionality of the City Council‘s decorum policy on its face and as applied to his conduct at the 2002 meeting. He named as defendants the City of Santa Cruz; Christopher Krohn, the Mayor (“Mayor“); Tim Fitzmaurice and Scott Kennedy, members of the Santa Cruz City Council; Loran Baker, the sergeant-at-arms of the meeting (and also a member of the Santa Cruz police force); and several others (collectively “the City“).
The district court granted the City‘s motion to dismiss. Norse appealed. A panel of this court affirmed dismissal of Norse‘s facial challenge, but reversed dismissal of the as-applied challenge. Norse v. City of Santa Cruz (”Norse I“), 118 Fed.Appx. 177 (9th Cir.2004). Construing the City‘s rules to proscribe only disruptive conduct, the panel held the rules were facially valid under controlling circuit case law. See id. at 178 (citing White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990)). The panel was not able to determine from the pleadings whether the Nazi salute was disruptive, however, and thus had “no way of assessing the reasonableness of the Mayor‘s conclusion that Norse should have been ejected.” Id. It reversed and remanded the as-applied challenge.
On January 13, 2004, while his appeal was pending before this Circuit, Norse again was ejected from another Santa Cruz City Council meeting and arrested, this time for whispering to another meeting attendee. On remand, Norse amended his complaint to challenge this ejection, as well. In June 2005, the district court entered a case management order giving the parties just less than six months to conduct limited discovery, and requiring that all dispositive motions be heard no later than December 16, 2005.
Neither party filed any dispositive motions.1 The district court scheduled a jury trial for March 26, 2007. The parties filed trial briefs, motions in limine, evidentiary objections, proposed voir dire questions and jury instructions, and otherwise prepared for trial. In one motion in limine, Norse objected to the City‘s efforts to introduce evidence of his participation in City Council meetings other than the 2002 and 2004 meetings discussed in the complaint. At a pretrial hearing on March 15, Norse also objected to the admissibility of meeting minutes that purported to describe his conduct at these meetings.
On Thursday, March 22, 2007, the district court issued an order regarding trial proceedings in which it stated that rather than hold trial on the 26th, it would “consider the question of whether any of the individual defendants . . . is entitled to qualified immunity.” The order also indicated the court was likely to deny, in part,
Norse‘s motion in limine to exclude evidence of his actions at other City Council meetings, but stated that it would consider the specific evidence that the City wished to have admitted and would make evidentiary rulings on the 26th as well.
That Monday, Norse and the City appeared for a hearing. Norse objected to what he saw as an unorthodox procedure, arguing that he had been preparing for trial and did not have time to produce what in effect needed to be an opposition to summary judgment. He argued that videotapes of the 2002 and 2004 meetings were not accurate portrayals of the meetings inasmuch as they were only excerpts. He continued to object to the admissibility of evidence regarding other City Council meetings. He argued that he had witnesses to call who could give context to the videos. He opposed qualified immunity on the merits. The district court did not permit Norse to submit further evidence or present testimony.
On March 28, the district court entered a summary judgment order. See LaLonde v. Cnty. of Riverside, 204 F.3d 947, 953 (9th Cir.2000) (“The court‘s pretrial order granting qualified immunity amounted to a sua sponte summary judgment.“). It determined that the individual defendants were entitled to qualified immunity and that there was no independent basis to hold Santa Cruz liable. Although the district court appeared to consider evidence of Norse‘s conduct at two 2001 City Council meetings, it did not rule on Norse‘s motion in limine, nor did it resolve all pending evidentiary questions.
Norse appealed. The original panel retained jurisdiction over the case, and it affirmed. Norse v. City of Santa Cruz (”Norse II“), 586 F.3d 697, 700 (9th Cir.2009). This time, Judge Tashima, dissenting in part, argued that “the record supports the inference that the Mayor and members of the City Council excluded Norse from the 2002 meeting because they disagreed with the views he expressed by giving his silent Nazi salute.” Id. at 701 (Tashima, J., dissenting).
A majority of nonrecused active judges voted to rehear this case en banc pursuant to
District courts unquestionably possess the power to enter summary judgment sua sponte, even on the eve of trial.2 However, the procedural rules governing
A
“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.” United States v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 955 (9th Cir.2008) (internal quotation marks omitted). “Reasonable notice implies adequate time to develop the facts on which the litigant will depend to oppose summary judgment.” Portsmouth Square, Inc. v. S‘holders Protective Comm., 770 F.2d 866, 869 (9th Cir.1985).
In this case, the district-court-imposed deadline for filing dispositive motions had passed some fifteen months before trial. On the Thursday before the Monday trial, the district court notified the parties of its intent to hear summary judgment arguments on the day set for trial. Under the rules operative at the time, Norse was only afforded two-days’ notice before the hearing. See
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.5
B
Additionally, Norse did not have a “full and fair opportunity to ventilate the issues
prior to the district court‘s summary judgment on the [his] claims.” Greene v. Solano Cnty. Jail, 513 F.3d 982, 990 (9th Cir.2008) (internal quotation marks omitted).
The district court rejected Norse‘s requests and did not permit him the time to compile evidence for the court. Norse received neither the 10-days notice nor a full and fair opportunity to ventilate the issues, so we must reverse the district court‘s grant of summary judgment. See United States v. Grayson, 879 F.2d 620, 625 (9th Cir.1989).
C
Before ordering summary judgment in a case, a district court must not only provide the parties with notice and an opportunity to respond to adverse arguments, it must also rule on evidentiary objections that are material to its ruling. See Sanchez v. Aerovias De Mexico, S.A. De C.V., 590 F.3d 1027, 1029 (9th Cir.2010) (acknowledging this rule, but noting it is subject to harmless error analysis). In this case, the district court failed to rule on Norse‘s evidentiary objections material to its ruling.
Norse had stated three relevant evidentiary objections. First, he filed a motion in limine, seeking to exclude all evidence related to all incidents involving him at city council meetings—other than the 2002 and 2004 meetings—as irrelevant, prejudicial, and improper character evidence. Second, he objected to the City‘s attempt to introduce evidence of some of these incidents via written minutes as double hearsay. And third, he objected that the videos did not accurately portray the meetings because they were only excerpts. The district court failed to issue a final ruling on any of these objections.6 In fact, the court considered video evidence not only of the 2002 and 2004 meetings but also of what happened at other meetings.
The district court‘s failure to rule on Norse‘s evidentiary objections contributed to a greater problem that we face in this case, which is that we do not know what evidence to consider on appeal. The parties did not file any affidavits, depositions, answers to interrogatories, or any other
D
Most procedural
The district court apparently relied on the videos of the council that were submitted to it as a basis for its decision.7 However, there are genuine issues of material fact apparent from the recordings, which would entitle Norse to a trial on the merits.8 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.” Hansen v. Bennett, 948 F.2d 397, 400 (7th Cir.1991) (emphasis added); see also Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d Cir.2006) (“In cases in which a constitutional violation depends on evidence of a specific intent, it can never be objectively reasonable for a government official to act with the intent that is prohibited by law.” (internal quotation marks omitted)). The DVDs show triable issues of fact as to whether Norse was impermissibly ejected because of his viewpoint rather than his alleged disruptiveness.
As the Seventh Circuit wrote in a very similar case,
[T]he defendants argue that their appeal cannot present a factual question because the record includes a tape recording and transcript of the city council meeting. As a result, the parties do not disagree about what [the attendee] said
or did, what [the Mayor] said or did, or what generally transpired at the meeting. Be that as it may, the record does not enable us to determine the factual issue of [the Mayor]‘s intent; we would need a transcript of his thoughts for that. In so holding, we are mindful that “[s]ummary judgment is not defeated merely because issues of motive or intent are involved.” Jackson v. Elrod, 881 F.2d 441, 443 (7th Cir.1989). We do not hold that [the Mayor]‘s intent is metaphysically unknowable, but that there is a genuine factual dispute on the question.
Hansen, 948 F.2d at 400 (fifth alteration in Hansen).
Of course, different viewers of the tape may draw different conclusions, and that is precisely why summary judgment was inappropriate here--at the summary judgment stage, the non-moving party is entitled to have permissible inferences drawn in his or her favor. Here, applying our traditional summary judgment analysis, we conclude there are genuine issues of material fact present on the video that preclude summary judgment.
III
The City argues, in the alternative, that it is entitled to judgment as a matter of law, either on the pleadings or based on other undisputed facts. We may, of course, affirm the district court on any basis supported by the record. However, we must reject the City‘s arguments, except as to one defendant.
A
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. Id.; see also Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 270–71 (9th Cir.1995) (“[L]imitations on speech at [city council] meetings must be reasonable and viewpoint neutral. . . .“); accord Steinburg v. Chesterfield Cnty. Planning Comm‘n, 527 F.3d 377, 385 (4th Cir.2008); Eichenlaub v. Twp. of Ind., 385 F.3d 274, 281 (3d Cir.2004).
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
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.10
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 decline the City‘s invitation to rewrite First Amendment law to extinguish the rights that citizens have when they attend public meetings.
B
We also decline the City‘s invitation to rewrite the rule announced in Norwalk. 900 F.2d at 1424–26. 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. Id.
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.
C
The city officials are not entitled to absolute immunity. Local legislators are absolutely immune from liability under
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.” Kaahumanu v. Cnty. of Maui, 315 F.3d 1215, 1220 (9th Cir.2003) (internal quotation marks omitted). “Whether an act is ad hoc can depend on whether it is aimed at a few people or many, and whether an act bears all the hallmarks of traditional legislation can depend on whether it is ad hoc.” Id. at 1220 n. 4.
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,” however, see id. at 1220, 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. See id. at 1223. 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. See Vacca v. Barletta, 933 F.2d 31 (1st Cir.1991) (holding that the Chair of a school committee was not absolutely immune from suit over his actions in removing another committee member from a meeting).
D
The district court dismissed the case against Santa Cruz based on its determination that Norse‘s constitutional rights were not violated. The City urges us to affirm this dismissal on the basis that Norse failed to allege any facts that could support municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Norse argues that municipalities can be liable under
As against officer Baker, Norse alleges claims of false arrest and excessive force. The City argues that Baker is immune from suit if reasonable officers in his position could have disagreed on the issue of probable cause. We agree with the City. The existence of probable cause is dispositive as to false arrest and excessive force claims.
“To prevail on [a]
Norse also alleges he was subject to excessive force. An excessive-force claim that arises in the context of an arrest is properly characterized as one invoking the protections of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “To determine if a Fourth Amendment violation has occurred, we must balance the extent of the intrusion on the individual‘s Fourth Amendment rights against the government‘s interests to determine whether the officer‘s conduct was objectively reasonable based on the totality of the circumstances.” Espinosa v. City & Cnty. of S.F., 598 F.3d 528, 537 (9th Cir.2010). The only force alleged in the complaint was Baker‘s order that Norse place his hands behind his back at the 2002 meeting. Even though Norse was being arrested for, at most, a minor misdemeanor offense, we cannot say that a reasonable officer in Baker‘s position would have known that this limited use of force was unreasonable: Norse had refused to leave the meeting of his own accord, a fact also alleged in the complaint, and a reasonable officer could have believed that probable cause existed for the arrest. Therefore, judgment must be entered in favor of Baker on the claims asserted against him.
IV
For the foregoing reasons, we reverse the dismissal of Norse‘s
We need not, and do not, reach any other issues urged by the parties. Each party shall bear its own costs on appeal.
Chief Judge KOZINSKI, with whom Judge REINHARDT joins, concurring:
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.” Scott v. Harris, 550 U.S. 372, 378 n. 5, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); 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. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1378 (9th Cir.1990).
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.” Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). 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, 900 F.2d 1421 (9th Cir.1990), we explained that speech must “disrupt[,] disturb[] or otherwise impede[] the orderly conduct of the Council meeting” before the speaker could be removed. Id. at 1426. And in Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266 (9th Cir.1995), 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. Id. at 271. 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. Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 134–35, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). The council members should have known that the government may never suppress viewpoints it doesn‘t like. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). 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.