Federal Hoedown: In Court with Four Attorneys, Three Mayors, One Cop, and a Bad Judge

Following is the order we received by e-mail from Judge Whyte this afternoon, cutting short the trial. Attorneys Beauvais and Wells indicate they intend to appeal as well as comment on Judge Whyte's opinion for indybay readers, once they catch their breath.

I hope to post the videotapes on which Whyte made his decision soon so readers can judge for themselves. I would say the evidence speaks for itself that Kennedy and Fitzmaurice (through Krohn) were engaging in ad hoc retaliatory behavior that itself disrupted both Council meetings and had nothing to do with any actual disruption from the floor.

That a Nazi salute, in and of itself, is nothing more than a simple "you're acting very repressively" statement, much like a sign held up from the audience, is really pretty common-sense.

Whyte's language in suggesting I "demanded" rather than asked "what was my first warning?" when Kennedy chose to interrupt his own meeting to announce I'd been given two warnings shows bias. This is an example of the kind of decision that I feel should have been made by the jury in deciding if a disruption occured, and if so, who created it.

It's particularly dangerous when people in positions of authority can interrupt speakers, silence peaceful protest, and then use city funds to defend this kind of behavior in court when it is challenged.

I shall have more to write on this issue, as, I hope, will my attorneys.

But for the information of those thinking of attending the trial, it's been postponed until and unless the 9th Federal Court of Appeals again overrules Whyte.

Below is Whyte's opinion:



ORDER DISMISSING PLAINTIFF'S COMPLAINT UPON FINDING OF QUALIFIED IMMUNITY OF DEFENDANTS
C-02-01479 RMW E-filed on: 3/28/07
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
ROBERT NORSE, Plaintiff, v. CITY OF SANTA CRUZ, et al.,
Defendants. No. C 02-01479 RMW

This matter came on regularly for trial on March 26, 2007. Pursuant to the court's pretrial order dated March 22, 2007, the court set the first day of trial to determine whether the issue of defendants' entitlement to qualified immunity could be determined based upon undisputed facts.

After considering the undisputed facts and hearing the arguments of counsel, the court finds that the individual defendants are entitled to qualified immunity and that there is no basis for independent liability of the City. Therefore, the court will enter judgment in favor of defendants.

I. UNDISPUTED FACTS
Plaintiff Robert Norse claims damages under 42 U.S.C. § 1983 for alleged violations of his civil rights under the First and Fourth Amendments of the Constitution based upon incidents occurring at Santa Cruz City Council meetings on March 12, 2002 and January 13, 2004. The parties agree that the council meetings were videotaped, that the videotapes are admissible and depict what occurred at the meetings. The parties also agree as to the content of the City's rules for Decorum in Council Meetings and Norse's knowledge of them.

A. March 12, 2002 Incident
On March 12, 2002 Norse was ejected from the council meeting following his Nazi salute protesting Mayor Christopher Krohn's refusal to allow an individual to speak after the "oral communication" session, a period of time when members of the public are allowed to address the council, had ended. Immediately prior to Norse's Nazi salute, Mayor Krohn had instructed a boisterous, somewhat threatening individual objecting to the end of open communications to leave
and had instructed the individual who was insisting that she be allowed to speak after the end of oral communications to step away from the microphone and be seated. After being instructed twice to
step away from the microphone and warned that, if she did not, she would have to leave, she stepped away and walked over to Norse who then gave the Nazi salute. Before the salute, Mayor Krohn had
resumed reading some announcements and thus did not see the salute. Council member Tim Fitzmaurice then interrupted Mayor Krohn, advised him that the Nazi salute had been given, stated
that he felt the salute was against the "dignity of the body" and requested that Krohn instruct Norse to leave the chambers. Norse started to challenge Fitzmaurice's statements and Mayor Krohn
immediately instructed Norse to "please leave the chambers." Norse, who was then standing by the entrance to the chambers, refused and took a seat in the chambers. A recess was taken and Loran Baker, a police officer acting as the sergeant-at-arms for the council, asked Norse if he was going to voluntarily leave and Norse said he would not. Baker then placed Norse under arrest without incident except for Norse's calling attention to the fact he was being arrested.

The videotape of a June 26, 2001 council meeting shows that then Mayor Fitzmaurice advised Norse that any future Nazi salute would be considered "indecorous behavior." The videotape of a July 10, 2001 meeting reflects that council member Keith Sugar asked Norse not to
use Nazi gestures.

B. January 13, 2004 Incident
On January 13, 2004 Norse was ejected from the council meeting by Mayor Scott Kennedy following certain conduct by Norse. The city council was discussing a proposed housing seating area and the dias where the council members were seated. Norse was one of those in the parade but he was not carrying a sign.

Mayor Scott Kennedy interrupted the proceedings, asked that people not block the view of the members of the audience by walking between the public seating area and the dias and that this was a warning that further disruption could lead to expulsion. Later, during comments by council member Ed Porter, Mayor Kennedy interrupted Porter and asked Norse, who, according to Norse, was whispering to another individual, to "please take your conversation outside." Mayor Kennedy also advised Norse that this was his second warning. Norse then asked what was his first warning and Kennedy replied that this was his third warning and asked him to leave the chamber.

Norse apparently walked outside and then Porter resumed his discussion after pausing to regain his train of thought. After discussion on the project concluded, Mayor Kennedy discussed the decorum rules and listed Norse, who had returned to the chambers, as one of several that had been warned and asked him again to leave as he had been asked one-half hour earlier. Norse insisted to no avail that a council vote be taken on his ouster.[See Footnote 1] Norse then refused to leave, a recess was taken and Norse was arrested after he maintained his refusal to leave.

C. Rules for Decorum in Council Meetings

The City of Santa Cruz has written procedural rules for Decorum in Council Meetings. The rules provide that:

While the Council is in session, all persons shall preserve order and decorum. Any person making personal, impertinent, or slanderous remarks, or becoming boisterous shall be barred by the presiding officer from further attendance at said meeting unless permission for continued attendance is granted by a majority vote of the Council.

The rules also require all speakers to "avoid[] all indecorous language and references to personalities and abid[e] by the following rules of civil debate.
1. We may disagree, but we will be respectful of one another
2. All comments will be directed to the issue at hand
3. Personal attacks should be avoided"

Finally, the rules provide that the chief of police, or representative, shall act as ex-officio sergeant-at-arms of the Council and "shall carry out all orders and instructions of the presiding officer for the
purpose of maintaining order and decorum in the Council Chambers."

Upon instructions of the presiding officer it shall be the duty of the sergeant-at-arms or any police officer present to eject from the Council Chambers any person in the audience who uses boisterous or profane language, or language tending to bring the Council or any Councilmember into contempt, or any person who interrupts and refuses to keep quiet or take a seat when ordered to do so by the presiding officer or otherwise disrupts the proceedings of the Council.

Norse, who frequently attends and speaks at council meetings, was familiar with the decorum rules at the time of the incidents.

II. NATURE OF CLAIM AND QUALIFIED IMMUNITY
Plaintiff filed this lawsuit under 42 U.S.C. § 1983 seeking to recover compensatory and punitive damages, as well as injunctive relief based upon the March 12, 2002 incident. Plaintiff originally challenged the constitutionality of Santa Cruz's written rules regarding decorum during city council meetings, both on their face and as applied. However, the court of appeals, although agreeing with plaintiff that the court should not have granted defendants' motion to dismiss on the
pleadings, construed the decorum rules to proscribe only disruptive conduct and thus held that the rules are facially valid. Norse v. City of Santa Cruz, 118 Fed. Appx. 177, 178 (9th Cir. 2004).

Norse, therefore, limits his claim to one that his constitutional rights were violated by the manner in which the decorum rules were applied to him. After the appellate court decision, Norse amended his complaint to assert that his constitutional rights were also violated by the way the rules were applied to him at the council meeting on January 13, 2004.

Defendants contend that the rules were appropriately applied to Norse and, in any event, the individual defendants are immune from suit because it would not have been clear to a reasonable officer in any of the defendants' positions that the action taken was unlawful in light of the situation that the defendant confronted. See Saucier v. Katz, 533 U.S. 194, 202 (2001); Trevino v. Gates, 99 F.3d 911, 916 (9th Cir. 1996).


III. ANALYSIS

A. Qualified Immunity Should Be Resolved As Early As Possible
"[B]ecause [t]he entitlement is an immunity from suit rather than a mere defense to liability," the Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at
the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991); see Saucier, 533 U.S. at 200-01. Qualified immunity is effectively lost if a case is allowed to go to trial where the defendant is entitled to qualified immunity. Saucier, 533 U.S. at 201.

B. Qualified Immunity Analysis

The determination of whether qualified immunity is applicable involves a two step inquiry.

The first question is whether the undisputed facts show that the action of the defendant violated a constitutional right. In the present case, therefore, the issue is whether Krohn, Fitzmaurice, Baker or Kennedy violated a constitutional right protecting Norse. Id. at 201. If so, the next question is whether that right was clearly established in the specific context of the case. Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would have been clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202.

The determination of qualified immunity on facts not genuinely at issue is one of law for the court. See Thompson v. Mahre, 110 F.3d 716, 721 (9th Cir. 1997); Act Up!/Portland v. Bagley, 988
F.2d 868 (9th Cir. 1993).

1. The March 12, 2002 Meeting
a. Norse's Constitutional Rights Were Not Violated When He Was Removed from the Council Meeting Following His Nazi Salute
The Ninth Circuit has upheld decorum rules similar to those adopted in Santa Cruz against a facial constitutional challenge based upon an interpretation of the rules that requires an individual who engages in proscribed conduct be acting in a way that actually disturbs or impedes the meeting.
White v. City of Norwalk, 900 F.2d 1421, 1424 (9th Cir. 1990); Kindt v. Santa Monica Rent Control Board, 67 F.3d 266 (9th Cir. 1995).

As noted above, the Ninth Circuit upheld the Santa Cruz rules against a facial challenge in this case. Norse, supra. Rules governing public participation at council meetings will be upheld as long as the rules are reasonable and viewpoint neutral. Kindt, 67 F.3d at 270-71. Rules such as those involved here seek to further the government's legitimate interest in conducting orderly and efficient meetings of the city council by prohibiting disruptive comments and behavior. See White, 900 F.2d at 1421. The presiding officer's enforcement of the rules "involves a great deal of discretion." Id. at 1426. Therefore, with respect to the March 12, 2002 meeting, the first question in the two step Saucier test for qualified immunity is whether the ejection of Norse was objectively reasonable because his conduct was disruptive (impeded the council from accomplishing its business in a reasonably efficient manner) or was based upon the mere content of his speech.
The salute occurred after the oral communication portion of the meeting had concluded.

After dealing with two individuals who were clearly disruptive, Mayor Krohn resumed the council's business by reading some announcements. Since he was reading, he did not notice Norse's gesture but within seconds council member Fitzmaurice called his attention to the fact that Norse had made a Nazi salute. Fitzmaurice's concern, at least as expressed, seems to have been with the content of the expression ("below the dignity of the body") rather than with any interference with the orderly conduct of the meeting. Krohn, however, as the presiding officer in charge of running the meeting,
was suddenly faced with a meeting that had been interrupted by an offended council member.

Krohn had just finished dealing with two disruptive members of the public, at least one of whom Norse was supporting with his salute. Krohn also knew that two council members in the previous months had expressed to Norse their abhorrence of his Nazi gestures which reasonably suggests that Norse intended his salute at the March 12, 2002 meeting to be disruptive. Further, Norse had begun to verbally challenge Fitzmaurice's comments. Under these circumstances, the court finds that Krohn's action in ejecting Norse from the chambers was a reasonable means within his "great deal of discretion" controlling the conduct of the meeting and was not merely action taken based upon the content of Norse's speech. Therefore, Norse's First Amendment rights were not violated.

b. A Reasonable Mayor Would Not Have Believed that the Ejection of Norse Was Unlawful in the Situation He Confronted
Assuming arguendo that Norse's Nazi salute was not disruptive, the next question is whether

Footnote 2: On one occasion Kindt was asked to move when he and others were disturbing another member of the public addressing the board. On that occasion, a board member stomped out because he thought Kindt and others should have been ejected. On another occasion Kindt and a cohort were ejected after a board member thought the cohort had made an obscene gesture toward him. Kindt, 67 F.3d at 268-69.


the right to express oneself by a Nazi salute was clearly established in the specific context of the case. Id. The dispositive inquiry in determining whether a right is clearly established is whether it
would have been clear to a reasonable mayor in the situation he confronted that his act of ejecting Norse for making a Nazi salute was a violation of his First Amendment rights. Id. at 202. The law is clearly established that an individual may be ejected from a council meeting for disruptive behavior, in other words behavior that interferes with a council's accomplishing its business.
However, the determination as to what constitutes disruptive behavior in the situation confronted by Krohn is not so clear. The discussion in White was limited to the question of whether the ordinance was unconstitutional on its face. It did not deal with the particular conduct that led to the plaintiffs' ejections. The court, however, observed:

A more fundamental flaw in plaintiffs' position is that their first amendment arguments do not take account of the nature of the process that this ordinance is designed to govern. We are dealing not with words uttered on the street to anyone who chooses or chances to listen; we are dealing with speech that is addressed to that Council. Principles that apply to random discourse may not be transferred without adjustment to this more structured situation.
White, 900 F.2d at 1425.
In Kindt, the court affirmed the dismissal of a § 1983 action in which plaintiff claimed that the rent control board violated his First Amendment rights when it ejected him from public board meetings and by discriminating between speakers who supported the board's views and speakers who opposed them. The court gave guidance on the type of limitation of speech allowed. "It seems to us that the highly structured nature of city council and city board meetings makes them fit more neatly into the nonpublic niche . . . . The fact remains that limitations on speech at those meetings must be reasonable and viewpoint neutral, but that is all they need to be." Kindt, 67 F.3d at 270-71.

However, the Kindt court provides little help on what conduct can be considered disruptive and therefore justifies ejection. Kindt's conduct was described as abandoning "all sense of decorum."
Id. at 273. 2

The court concludes based upon the undisputed facts that it would not have been clear to a reasonable mayor in Mayor Krohn's position that his ejection of Norse was unlawful in the situation he confronted. Therefore, even if Norse's First Amendments rights were violated, Krohn is entitled to qualified immunity.

c. Council Member Fitzmaurice Did Not Eject Norse
Although council member Fitzmaurice requested Mayor Krohn remove Norse from the meeting, only Krohn had that power and, in fact, made the order of ejection. Therefore, regardless of the validity of Fitzmaurice's stated reason for his request, he cannot be held responsible for Norse's removal. Further, even if Fitzmaurice were responsible for Norse's removal and was improperly motivated, he would nevertheless be entitled to qualified immunity. Evidence concerning the defendant's subjective intent is simply irrelevant to the question of qualified immunity. See, e.g., Morgan v. Woessner, 997 F.2d 1244, 1260 (9th Cir. 1993).

d. Probable Cause for Arrest
Defendants contend that there was probable cause to arrest Norse. The order ejecting him was a lawful order and his refusal to comply with the lawful order established probable cause to arrest him. The complaint alleges that Sergeant Baker, at the Mayor's instruction, informed plaintiff that he would have to leave or he would be arrested. Plaintiff refused to leave. Sergeant Baker then placed plaintiff under arrest. Plaintiff contends that the ejection order was unlawful because he had not disrupted the meeting. As discussed above, however, the meeting was in fact disrupted. Thus, the order to remove plaintiff was lawful. Plaintiff's refusal to leave the chambers provided probable cause for his arrest. Thus, there was no constitutional violation by Sergeant Baker.

In addition, Sergeant Baker has qualified immunity. The decorum rules provide that the sergeant-at-arms of the Council "shall carry out all orders and instructions of the presiding officer . . . ." There was no clearly established law pursuant to which Sergeant Baker should have known that the Mayor's order was unlawful. The City's decorum rules and their application were not so obviously unconstitutional that a reasonable police officer would have refused to enforce Mayor
Krohn's direction to remove Norse from the council meeting. See Grossman v. City of Portland, 33 F.3d 1200, 1209-10 (9th Cir. 1994).
A reasonable officer in Sergeant Baker's position would not have believed that arresting plaintiff for refusing to comply with an apparently lawful order to depart from the council meeting violated any clearly established right. Sergeant Baker has qualified immunity for his actions in arresting plaintiff.

2. The January 13, 2004 Meeting
a. Norse's Constitutional Rights Were Not Violated When He Was Removed from the Council Meeting For His Disruptive Behavior Plaintiff argues that there is a question of fact as to whether Norse's conduct at the January 13, 2004 meeting was disruptive and that individuals who were at the meeting would testify that Norse was not disruptive and that his conversations were no louder than those engaged in by others.

The court accepts for the purposes of its analysis that plaintiff could offer such testimony—a qualified immunity analysis must be based upon undisputed facts or facts viewed in the light most favorable to plaintiff. However, the videotape of the January 13, 2004 meeting shows plaintiff participating in the parade of individuals walking between the public seating area and the dias where the council members were seated, talking into a handheld recorder as the picketers entered the council chambers, initiating conversation with an individual (possibly a city staff person) while another individual was making a presentation to the council, demanding to know what his first
warning was when the mayor advised him of his second warning and insisting that a council vote be taken concerning Mayor Kennedy's decision to eject him. Even accepting the testimony that plaintiff says he could offer, the undisputed evidence shown by the videotape supports without legitimate dispute that Norse's ejection was within the "great deal of discretion" a presiding officer has in enforcement of decorum rules. Norse's participation in the parade of protesters was clearly disruptive. The videotape shows that he was talking into a recorder during the meeting, that he initiated conversation with someone when another was making a presentation to the council and that he engaged in verbal challenges to Mayor Kennedy's warnings to him. The fact that some individuals who were at the meeting did not consider him disruptive does not negate the fact that Mayor Kennedy reasonably viewed his conduct as disruptive. The court finds that the undisputed evidence, with consideration of the additional evidence plaintiff says he could present, shows no violation of Norse's constitutional rights. That finding ends the inquiry under Saucier and Mayor Kennedy is entitled to qualified immunity from Norse's claim.

b. A Reasonable Mayor Would Not Have Believed that the Ejection of Norse Was Unlawful in the Situation He Confronted
Since the evidence establishes without question that Norse's constitutional rights were not violated by his ejection from the January 13, 2004 meeting, a reasonable presiding officer in Mayor Kennedy's position would not have believed that ejecting Norse from the meeting was unlawful. Kennedy is entitled to qualified immunity.

C. No Independent Basis for Liability of the City
Since the undisputed facts show no violation of Norse's constitutional rights, there is no basis for liability of the City.

IV. ENTRY OF JUDGMENT
Since the individual defendants are entitled to qualified immunity and there is no basis for independent liability of the City since no constitutional violation occurred, judgment shall be entered in favor of all defendants and plaintiff is entitled to no relief by way of his complaint.

DATED: 3/28/07 RONALD M. WHYTE United States District Judge

Footnote 1 The Decorum Rules do allow a majority of the council to give permission for continued attendance despite the decision of the presiding officer to bar an individual. However, the rules do not provide for the individual to call for a vote.
development in an industrial area of the city. Certain individuals were parading between the public

http://www.youtube.com/watch?v=p78kADCziJE

from: http://www.santacruzsentinel.com/archive/2007/April/04/local/stories/09local.htm

April 4, 2007
Judge rules Nazi salute too disruptive for public venue
By Shanna McCord
Sentinel staff writer

SANTA CRUZ — Free speech goes only so far inside City Hall.
A federal judge has ruled that city officials had the right to eject a homeless-rights advocate from a council meeting in 2002 for giving a Nazi salute.
The judge said the action was too disruptive for the venue.

BECKY: False. The Judge did not rule that the Nazi Salute is a disruption. His ruling turned on the fact that Norse had been warned previously against using a Nazi Salute in council chambers and that the chair has "wide discretion." The 9th Circuit Court of Appeals had also examined the "Nazi Salute" previously, and saw no disruption. The Judge ruled that Mayor Krohn had "qualified immunity" and therefore could not be prosecuted.

"You don't have the same First Amendment rights in a meeting as you do on the street," said attorney George Kovacevich, who represented the city in the five-year, $100,000 legal fray. "You have the right to attend, but you don't have the right to say whatever you want, whenever you want"

BECKY: Note that this $100,000 which Barisone now bills the City for is not covered in the $500,000 for Barisone's contract. This case included writing a 70-page brief in response to an 8-page brief and other tactics to bill the City the maximum amount his office could possibly bill.

Robert Norse sued the city for alleged violations of his civil rights under the First and Fourth amendments shortly after being arrested at a council meeting in March 2002.

BECKY: For his one and a half-second raising of his arm silently from the side of the room, Norse was handcuffed and carted off to jail. The alleged "disruption" was never prosecuted as the DA determined there was not enough evidence to press charges.

Then-Mayor Christopher Krohn had called an end to the public-comment period of the meeting and instructed a woman to step away from the microphone. After twice being told to leave the microphone, the woman walked over to Norse, who raised his right arm toward council members in a Nazi salute, the way Nazi supporters saluted German dictator Adolph Hitler during World War II.

BECKY: Krohn had earlier asked how many wanted to speak at oral communications. Activist, Susan Zeman was in the earlier group who had raised her hand. She believed she had been granted permission to speak and was shocked to walk up to the podium and have Krohn cut off oral communications right in front of her. Nor would he listen to her appeal to allow her to speak. When Krohn threatened to have her arrested, Norse responded with the Nazi Salute.

Then-Councilman Tim Fitzmaurice interrupted Krohn to ask Norse to leave the meeting, saying the salute was an insult to the "dignity of the body"

BECKY: This was content-based. No one can say that if Norse had given a "thumbs up" he would have been arrested. Offending the "dignity of the body" can happen when citizens are redressing government grievances. Norse contends that the "rules of decorum" forbid citizens from criticizing their government.

Norse refused to leave and was subsequently arrested. The problem with Norse raising his arm to the council was not the meaning of the salute, but rather the disruption the salute caused, according to U.S. District Judge Ronald M. Whyte, who issued the decision last week.
A City Council policy states that people who "interrupt and refuse to keep quiet or take a seat when ordered to do so by the presiding officer or otherwise disrupt the proceedings of the council" may be removed from a meeting.

BECKY: It's clear from the videotapes that it was Fitzmaurice who interrupted the council meeting with his delicate sensitivities, no doubt fueled by his dislike of Robert Norse (who he has walked out on twice while speaking) and his desire to have him removed from the meeting. Attorney Kate Wells, (who McCord declined to interview) said "The Council has a practice of interrupting their own meetings and then blaming individual citizens for the disruptions they themselves caused."

Norse, a council gadfly who often launches bitter attacks on the city's homeless policies, said the salute was meant as a protest to the city's refusal to deal with homeless issues.
He plans to appeal Whyte's decision to the 9th District Court of Appeals.

BECKY: No doubt this case will move forward as the 9th Circuit Court of Appeals did not see the same "disruption" that Whyte did.

"This is not about the Nazis and this is not about me," Norse said Tuesday. "This is about mayoral actions that involve oppression. What I'm fighting is not the Nazi salute. I'm fighting council oppression"

BECKY: Norse has been arrested four times at City Council and once on the sidewalk in front of New Leaf Market. He was not prosecuted in any of these arrests, and won a settlement from the City for the New Leaf incident where he sued for false arrest. Unfortunately, The City was able to exclude any evidence of these arrests or subsequent lack of convictions from the trial.

Rules limiting speech at council meetings are absolutely necessary to conduct city business, Kovacevich said.

BECKY: Norse doesn't dispute this. He contends his Nazi Salute was non-interruptive, but protected by his first amendment rights. Otherwise, it would be okay agree with what council is doing but not to disagree.

Federal law also gives added protections to city officials in cases of alleged civil rights violations. City officials can mistakenly violate a person's rights and not be held liable.
"They have to make spontaneous calls and run a meeting and not be afraid of getting sued every day," Kovacevich said.

BECKY: This was the actual ruling by Judge Ronald Whyte: that the council are immune from liability. Despite a pattern of false arrests. Despite rules that violate the 1st amendment and eliminate the right of the citizen to disapprove of what the council is doing.

Former Mayor Scott Kennedy, serving on the council in 2002, said Norse's salute was disruptive because he was standing in the front of the room where the council and public audience could see him.
"In my view, it was not the content," Kennedy said. "It was the time and place, and it did disrupt the meeting"

BECKY: Kennedy himself was named in another incident on Jan 13, 2004 where he arbitrarily established a system of tallies for warnings, which included calling holding a sign a "disruption" or inaudible whispering in the audience a "disruption". His "system" , under which he had Norse physically arrested, didn't even last to the next council meeting. Norse was never prosecuted for this arrest.

Councilman Mike Rotkin, not on the council in March 2002, said Norse has a long history of arguing with council members and straying from the topic being discussed.

BECKY: Kovacevich did an exhaustive analysis of every time Norse has spoken at City Council since 1999. Norse was ruled "off-topic" in less than 5% of comments. Rotkin also had Norse arrested at a council meeting in June of 2005 for violating the "5-minute rule" in which Rotkin limited comments on all consent agenda items by members of the public to a total of 5 minutes, which means that members of the public have little or no time to speak on items on the agenda, despite the Brown Act assurance that they do. Norse faced charges for 16-months only to have all charges dropped a week before trial.

"The entire council meeting is not a free speech forum," Rotkin said. "We go out of our way to make ourselves open and accessible to everybody. Robert needs to follow the process like everyone else, which is what the court told us"

BECKY: The court told the council they are immune from liability no matter what they do. Read Judge Ronald Whyte's decision at: http://www.indybay.org/newsitems/2007/03/27/18383947.php

Yes the Sentinel article about this was a smear and I believe the city will be smeared with deep you know by the time the appeal vindicates Norse. They are trying to scape goat him for disruptions that they caused and they are "being forgiven by the court" for forgetting the rights of guarded free speech. But they are actually acting in prejiduce against the personality of R. Norse.

Becky Johnson, who was scheduled to appear as a witness in the trial of the
three mayors, took the video that documented the Council's false arrests.

Sentinel writer Shanna McCord wrote a story that was both biased and
superficial. She has shown zero interest in recent incidents of City
Council repression. Her friendly and congenial manner seems to be more a
public posture to "open up" folks. She then presents her own view of the
situation which usually involves extensive quotes from the police
department, Councilmember Rotkin, and/or other authority figures. She has
not, as far as I can remember, ever done any in-depth investigation of a
local civil rights issue. Her indifference to the daily violation of
homeless civil rights is pervasive, and she has never done any investigation
of that issue.

When interviewing, she pretends to be interested and to take notes, but
rarely do the points she expresses interest in actually make their way into
the stories. She routinely gives one side of the story (as in the story
that follows where she quoted the City Attorney, but made no attempt to
reach attorneys Kate Wells and David Beauvais, our attorneys).

Likewise in stories involving the expansion of police powers she acts as a
transmission belt for the police and city staff, rubberstamping and
uncritically passing on their fearmongering. -This happened repeatedly last
year as the City gave Parks and Recration the power to ban smoking, ban
homeless from parking garages, add new policing to the Pogonip to get rid of
campers, expand P& R power to "close" any property they police, and to
illegitimately seize the lion's share of the Measure H funding--again for
anti-homeless patrolling. She has shown no interest in the downtown
crackdown on poor and homeless people.

One wonders if she's ever made a Public Records Act request in her life.

In this story, she and photographer Dan Coyro spent five minutes trying to
persuade me to make a Nazi salute for a photograph, then made a point of
taking a photo of me doing a thumbs up. In the end, Coyro published a photo
of me doing a partial Nazi salute which I was showing McCord to illustrate
how brief it was. The point was the Coyro was deceptive in his approach,
suggesting he was taking a photo of me doing something else, but then using
the partial salute.

McCord, though I like her personally, is an irresponsible, sloppy, and
terminally-biased reporter. My suggestion to anyone approached by her is to
request she ask her questions by e-mail or phone, and then get back to her
with a written statement. That way, something of what you say, will have to
be quoted one way or another. Or...maybe not.

Here's her spin on City Council's history of repression lawsuit, and Judge
Whyte's prejudicial ruling. More information can be found at
http://www.indybay.org/newsitems/2007/03/27/18383947.php .

Robert Norse

>Judge rules Nazi salute too disruptive for public venue
>By Shanna McCord
>Sentinel staff writer
>SANTA CRUZ - Free speech goes only so far inside City Hall.
>
>A federal judge has ruled that city officials had the right to eject a
>homeless-rights advocate from a council meeting in 2002 for giving a Nazi
>salute.
>
>The judge said the action was too disruptive for the venue.
>
>BECKY: False. The Judge did not rule that the Nazi Salute is a disruption.
> His ruling turned on the fact that Norse had been warned previously
>against using a Nazi Salute in council chambers and that the chair has
>"wide discretion." The 9th Circuit Court of Appeals had also examined the
>"Nazi Salute" previously, and saw no disruption. The Judge ruled that Mayor
>Krohn had "qualified immunity" and therefore could not be prosecuted.

NORSE: The 9th said that the rules of decorum were constitutional as
written (a bad decision since the rules are ill-defined, subjective, and
overbroad). But that they were valid as applied (that is, in my specific
case) only if an actual disruption was created by a member of the public.
(It would be novel and refreshing if these laws were also applied to
Councilmembers when they disrupt a meeting themselves.) But that is a
matter of fact for a trial--or at least that's how I remember attorneys
Beauvais and Wells describing the decision. If you find it, I'd love to see
it posted.

>
>"You don't have the same First Amendment rights in a meeting as you do on
>the street," said attorney George Kovacevich, who represented the city in
>the five-year, $100,000 legal fray. "You have the right to attend, but you
>don't have the right to say whatever you want, whenever you want"
>
>BECKY: Note that this $100,000 which Barisone now bills the City for is not
>covered in the $500,000 for Barisone's contract. This case included writing
>a 70-page brief in response to an 8-page brief and other tactics to bill
>the City the maximum amount his office could possibly bill.

NORSE: Nothing was audible on the Council tape in the second incident and
the Nazi salute was silent. I did speak up appealing to the Council on the
issue as Fitzmaurice made his point of order. And I did assert my right to
be present. In the Kennedy false arrest, I was asking Kennedy what I'd done
that required a warning, and my question itself was ruled to be
"disruptive".

>
>Robert Norse sued the city for alleged violations of his civil rights under
>the First and Fourth amendments shortly after being arrested at a council
>meeting in March 2002.
>
>BECKY: For his one and a half-second raising of his arm silently from the
>side of the room, Norse was handcuffed and carted off to jail. The alleged
>"disruption" was never prosecuted as the DA determined there was not enough
>evidence to press charges.

NORSE: These incidents were just two of many. There was a pattern of
harassment. Past incidents included (1) instructing police to arrest by
prearrangement (the Golden Toilet Seat Award-1999, Nay and Silva
arrests-2000, (2) hostile and prejudicial interruptions (Sugar's midnight
kidnapping of the Safe Sleeping Zones-2000), (3) a spurious restraining
order by the City-dissolved at trial--that banned us from legitimate
lobbying activity at the Mayor's office, (4) interrupting public testimony
with a walkout of Councilmembers (Fitzmaurice in 2000 and 2005), (5)
selective harassment of the media at City Council (threats for changing a
tape, restricting media movement), (6) intimidation for legitimate peaceful
silent 1st Amendment protected audience response to Council blabathons (a
silent "yak yak" gesture, the sign held up from the side "it's a lie") ,
(7) differential time cuts that limited my time specifically but not that of
others (Fitzmaurice's 30 seconds per item, Krohn and Rotkin's ad hoc and
then institutionalized 5-minute rule), and (8) most recently, censoring
public comment on an agenda item where the Mayor knew the comment would be
critical and I was the critic (Officer Howes hero award).
>
>Then-Mayor Christopher Krohn had called an end to the public-comment period
>of the meeting and instructed a woman to step away from the microphone.
>After twice being told to leave the microphone, the woman walked over to
>Norse, who raised his right arm toward council members in a Nazi salute,
>the way Nazi supporters saluted German dictator Adolph Hitler during World
>War II.
>
>BECKY: Krohn had earlier asked how many wanted to speak at oral
>communications. Activist, Susan Zeman was in the earlier group who had
>raised her hand. She believed she had been granted permission to speak and
>was shocked to walk up to the podium and have Krohn cut off oral
>communications right in front of her. Nor would he listen to her appeal to
>allow her to speak. When Krohn threatened to have her arrested, Norse
>responded with the Nazi Salute.

NORSE: Omitted from the Sentinel story is the fact that the gesture was
silent and brief. And that Mayor Krohn didn't even notice it.

>
>Then-Councilman Tim Fitzmaurice interrupted Krohn to ask Norse to leave the
>meeting, saying the salute was an insult to the "dignity of the body"
>
>BECKY: This was content-based. No one can say that if Norse had given a
>"thumbs up" he would have been arrested. Offending the "dignity of the
>body" can happen when citizens are redressing government grievances. Norse
>contends that the "rules of decorum" forbid citizens from criticizing their
>government.

NORSE: Or that if I'd held up a a sign "You're Acting Like Nazis Here",
that would have been "disruptive".
The Sentinel missed one of Whyte's "stronger" points (actually insufficient,
but pertinent in future situations, perhaps): that I was supposedly part of
a larger disruption and so was legitimately arrested by a mayor who made a
reasonable decision. Not supported by the videotape or by any
cross-examination (e.g. "Mr. Fitzmaurice, do you actually claim that the
meeting would have been delayed or disrupted or that business would not
have gone on as usual if you hadn't made your Point of Order?" I'd have to
check the depositions to see if that question was ever asked.

>
>Norse refused to leave and was subsequently arrested.

NORSE: Krohn, at Fitzmaurice's demand and on Kennedy's advice, then
disrupted his own meeting by recessing the meeting. This recessing action
significantly delayed (i.e. disrupted) the meeting and initiated a personal
confrontation with me which involved arresting him for refusing to obey a
bogus demand from a City Councilmember. The police officer involved didn't
consider my behavior arrest-worthy when he personally witnessed it himself,
but acted only on citizen's arrest from Krohn. The officer, Sgt. Loran
Baker, who had a history of prejudicial arrests of Norse himself, refused to
take my counter-complaint against Mayor Krohn for a "false police report"
(i.e. the claim that I "disrupted" the meeting with a silent gesture).
Baker also insisted on taking me to jail rather than citing and release me
in a clearly punitive move.

>
>The problem with Norse raising his arm to the council was not the meaning
>of the salute, but rather the disruption the salute caused, according to
>U.S. District Judge Ronald M. Whyte, who issued the decision last week.

NORSE: Whether the salute or the City Council's determination to suppress
was "the disruption" was an issue for the jury, which Whyte didn't allow to
form.
>
>A City Council policy states that people who "interrupt and refuse to keep
>quiet or take a seat when ordered to do so by the presiding officer or
>otherwise disrupt the proceedings of the council" may be removed from a
>meeting.

NORSE: After being told that Krohn regarded me as disruptive and ordered me
to leave I did in fact sit down. I suppose it can be argued that I did not
immediately sit down (at least, not for the pendancy of Fitzmaurice's point
of order), and that I did briefly approach the microphone to appeal to
justify myself before sitting down.

>
>BECKY: It's clear from the videotapes that it was Fitzmaurice who
>interrupted the council meeting with his delicate sensitivities, no doubt
>fueled by his dislike of Robert Norse (who he has walked out on twice while
>speaking) and his desire to have him removed from the meeting. Attorney
>Kate Wells, (who McCord declined to interview) said "The Council has a
>practice of interrupting their own meetings and then blaming individual
>citizens for the disruptions they themselves caused."

>
>Norse, a council gadfly who often launches bitter attacks on the city's
>homeless policies, said the salute was meant as a protest to the city's
>refusal to deal with homeless issues.

NORSE: Actually it was a response to Krohn's violation of his own Oral
Communications rules and his treatment of the last three speakers at Oral
Communications, particularly Susan Zeeman's.

>He plans to appeal Whyte's decision to the 9th District Court of Appeals.
>
>BECKY: No doubt this case will move forward as the 9th Circuit Court of
>Appeals did not see the same "disruption" that Whyte did.

NORSE: Previously Whyte was overruled when he dismissed the case 4 years
ago. Here Whyte showed rather blatant prejudice by not letting the case go
to trial for a jury to decide whether actual disruption occurred and who
caused it. He did not allow my side to present its witnesses and
evidence, but made his own (faulty) interpretations of what went on (such as
that whispering and tape recording were "disruptive") without any hearing of
the evidence.

>"This is not about the Nazis and this is not about me," Norse said Tuesday.
>"This is about mayoral actions that involve oppression. What I'm fighting
>is not the Nazi salute. I'm fighting council oppression"

NORSE: This is a garbled inaccurate quote. I'll be playing the whole
interview on Free Radio tonight (I taped it).

>BECKY: Norse has been arrested four times at City Council and once on the
>sidewalk in front of New Leaf Market. He was not prosecuted in any of
>these arrests, and won a settlement from the City for the New Leaf incident
>where he sued for false arrest. Unfortunately, The City was able to exclude
>any evidence of these arrests or subsequent lack of convictions from the
>trial.

NORSE: Not to mention the Porter arrest, the Rotkin arrest at the civic
auditorium, and some earlier arrests at Council in the late 80's. We
actually wanted to exclude prior and subequent arrests. They wanted to
exclude lack of convictions.
>
>Rules limiting speech at council meetings are absolutely necessary to
>conduct city business, Kovacevich said.
>
>BECKY: Norse doesn't dispute this. He contends his Nazi Salute was
>non-interruptive, but protected by his first amendment rights. Otherwise,
>it would be okay agree with what council is doing but not to disagree.

NORSE: The broader context is Mayoral overreaching, the selective use of
rules to repress critics, and a cavalier attitude towards the Brown Act.
>
>Federal law also gives added protections to city officials in cases of
>alleged civil rights violations. City officials can mistakenly violate a
>person's rights and not be held liable.

NORSE: A jury should decide if their "mistake" was intentional and
knowledgable and based on the false expectation that they could do whatever
they wanted without being held accountable.
>
>"They have to make spontaneous calls and run a meeting and not be afraid of
>getting sued every day," Kovacevich said.
>
>BECKY: This was the actual ruling by Judge Ronald Whyte: that the council
>are immune from liability. Despite a pattern of false arrests. Despite
>rules that violate the 1st amendment and eliminate the right of the citizen
>to disapprove of what the council is doing.

NORSE: Or even to show silent disapproval, communicate with audience
members, or ask clarification from the chair when challenged.

>
>Former Mayor Scott Kennedy, serving on the council in 2002, said Norse's
>salute was disruptive because he was standing in the front of the room
>where the council and public audience could see him.
>
>"In my view, it was not the content," Kennedy said. "It was the time and
>place, and it did disrupt the meeting"
>

NORSE: Kennedy has erred on this analysis before. In 2004, he was forced
to publicly retract a statement that I'd been convicted of the crime of
disrupting a meeting under threat of a lawsuit. In fact, it's only the
threat or reality of a lawsuit that forces councilmembers to backpeddle and
understand they are not untouchable.

>BECKY: Kennedy himself was named in another incident on Jan 13, 2004 where
>he arbitrarily established a system of tallies for warnings, which included
>calling holding a sign a "disruption" or inaudible whispering in the
>audience a "disruption". His "system" , under which he had Norse physically
>arrested, didn't even last to the next council meeting. Norse was never
>prosecuted for this arrest.
>
>Councilman Mike Rotkin, not on the council in March 2002, said Norse has a
>long history of arguing with council members and straying from the topic
>being discussed.
>
>BECKY: Kovacevich did an exhaustive analysis of every time Norse has spoken
>at City Council since 1999. Norse was ruled "off-topic" in less than 5% of
>comments. Rotkin also had Norse arrested at a council meeting in June of
>2005 for violating the "5-minute rule" in which Rotkin limited comments on
>all consent agenda items by members of the public to a total of 5 minutes,
>which means that members of the public have little or no time to speak on
>items on the agenda, despite the Brown Act assurance that they do. Norse
>faced charges for 16-months only to have all charges dropped a week before
>trial.

NORSE: Rotkin's use of the word "arguing" hides the fact that interchanges
I've had with Councilmembers have almost always happened when they interrupt
my public testimony, given at the appropriate time and place. It involves
defending myself from "disruption" by City Councilmembers because they don't
like what they are hearing.

>
>"The entire council meeting is not a free speech forum," Rotkin said. "We
>go out of our way to make ourselves open and accessible to everybody.
>Robert needs to follow the process like everyone else, which is what the
>court told us"
>
>BECKY: The court told the council they are immune from liability no matter
>what they do. Read Judge Ronald Whyte's decision at:
>http://www.indybay.org/newsitems/2007/03/27/18383947.php

NORSE: Actually Council process has become repeatedly closed over the
years. E.g.: Less accessible afternoon meetings, oral communications
periods at an uncertain time, a severelyi constricted consent agenda comment
time, refusal to follow the more open process of the Board of Supervisors
(allowing full oral communications for every speaker), and the suppression
of public comment on agenda-ized public presentations.
Rotkin as an individual Councilmember has retained
accessibility, been willing to go on Free Radio, responded to requests for
interviews and discussions. However he has refused to disclose his
appointment calendar and public schedule when Mayor as required by the
Sunshine Act. And he has displayed a continued tendency to interrupt,
threaten, and bully at City Council. Recently he demanded that I subside or
be "dragged out".
>


Shanna McCord's comment in an e-mail after she read the above critique:

From : Shanna McCord <smccord [at] santacruzsentinel.com>
Sent : Thursday, April 5, 2007 9:54 AM
To : "'Robert Norse'" <rnorse3 [at] hotmail.com>
Subject : RE: Norse and Johnson commentary on the Santa Cruz Sentinel "Nazi Salute" story (BJ)

Ouch, that hurt.


Support poor Shanna and her fine reporting by contacting her at: smccord [at] santacruzsentinel.com

I don't like the Sentinel in regards to the way it took a picture of SAFE -Valerie- and messed with her head while getting her to pose etc.

I can't find the email from Shanna sent to Robert.

I'm glad Robert's doing this-just like the non-democrats are rallying against Rosie O'Donell for mentioned opinions to millions on a morning talk show about Bush and historical governmental practices on its own people, when the truth gets brought out, then watch the flying inaccuracies appear in many forms.