Carol J. Williams, Los Angeles Times, December 16, 2010
The city of Santa Cruz violated the 1st Amendment rights of an advocate for the homeless when the mayor had him arrested for giving a Nazi salute at a City Council meeting, a federal appeals court ruled Wednesday.
The unanimous ruling by a full 11-judge panel of the U.S. 9th Circuit Court of Appeals deemed Mayor Christopher Krohn’s order to remove activist Robert Norse from the public meeting to be “viewpoint discrimination” rather than an effort to maintain order during discussion about where the homeless would be permitted to sleep.
Chief Judge Alex Kozinski, a libertarian and fierce supporter of 1st Amendment protections, said Norse’s ouster was spurred by a councilman’s “hissy fit,” not any actual disruption of the meeting.
The appeals court reversed a lower court decision to dismiss Norse’s lawsuit on grounds that city officials are immune from such legal actions. The case had been dismissed by U.S. District Judge Ronald M. Whyte of San Jose on the eve of trial, denying Norse any opportunity to argue that his rights had been violated, the appeals court said.
Kozinski wrote a concurring opinion to underscore the constitutional issues behind the decision to send the case back for trial. The chief judge said a video of Norse’s gesture at the March 12, 2002, meeting, part of the case record as well as available on YouTube, “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 [Tim] Fitzmaurice throws a hissy fit,” Kozinski said in arguing that Norse’ stiff-armed salute fell far short of the disruption necessary to justify his removal and arrest.
Norse is an activist with Homeless United for Friendship and Freedom and has been battling Santa Cruz officials over their treatment of the city’s down-and-out for more than a decade.