The majority of the 26 active judges of the Ninth U.S. Circuit Court of Appeals voted to rehear the case of homeless-rights advocate who sued the city of Santa Cruz after he was thrown out of a city council meeting for making a Nazi salute to the mayor. -db
March 13, 2010
By Bob Egelko
A federal appeals court granted a new hearing Friday to a homeless-rights advocate who sued the city of Santa Cruz after he was expelled from a City Council meeting for giving a mock Nazi salute to the mayor.
A three-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco ruled in November that a federal judge had properly dismissed Robert Norse’s free-speech suit because his actions were disruptive. But the court said Friday that a majority of its 26 active judges had voted to order a rehearing before an 11-judge panel of the appeals court.
Norse, who regularly attended council meetings to speak on homeless issues, was in the audience during discussion of an unrelated issue in March 2002. When then-Mayor Christopher Krohn cut off a speaker and announced that the public comment period was over, the speaker protested, and Norse rose in her support and extended his arm in a Nazi-like salute.
Norse refused Krohn’s order to leave, and was arrested and jailed for 5 1/2 hours before being released without charges. His suit seeks damages against Krohn, the council members, the arresting officer and the city.
U.S. District Judge Ronald Whyte dismissed the suit in 2007, saying Krohn and the council removed Norse because he disrupted the meeting, and not because he exercised his right of free expression. The appeals court panel agreed in a 2-1 ruling in November.
Videotapes of the meeting showed that Norse was not expressing an opinion on any issue before the City Council but was protesting the mayor’s enforcement of the council’s time limits for public comment, said Judge Mary Schroeder in the majority opinion. She said others in the audience were disrupting the meeting, and the mayor and council reasonably decided that Norse was adding to the disruption.
Dissenting Judge A. Wallace Tashima said the tapes contained evidence that Norse was being punished for his viewpoint – likening Krohn and the council to Nazis – and did not show that Norse was disruptive. Tashima said Norse should be allowed to take his suit to trial.
Norse’s lawyer, David Beauvais, welcomed Friday’s rehearing order. He said Norse had been pushing the council for years to improve Santa Cruz’s treatment of the homeless, and believes he was singled out for punishment.
“This fleeting, silent Nazi salute did not disrupt the meeting,” Beauvais said. “There was no basis to order him to leave.”
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